University of Colorado Law Review 1991
Notes and Comments, Page 637
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
PERPICH v. DEPARTMENT OF DEFENSE: FEDERALISM VALUES AND THE MILITIA CLAUSE
The United States Constitution establishes a system in which the civilian government supervises the military. The President acts as the Commander in Chief of the Army, the Navy, and the federally activated state militia.[1] Congress possesses the exclusive right to create and regulate the armed forces,[2] as well as to declare war.[3] In addition, Congress and the states share responsibility in organizing and training the various state militia.[4] The Constitution also places restraints upon the quartering of soldiers,[5] discusses the right of the general populace to "keep and bear Arms,"[6] and prohibits the election to [Page 638] state or federal office of individuals who provide assistance to enemies of the United States.[7] Although additional provisions allow the suspension of the writ of habeas corpus during times of rebellion[8] and except the military from a general requirement that criminal offenses be prosecuted by indictment and jury trial,[9] all other constitutional guarantees apply equally to the military.[10]
Despite the relative clarity of these constitutional provisions, [Page 639] there remains some uncertainty as to how they should be enforced. For instance, the Constitution does not indicate whether, or when, principles of separation of powers may be implicated by the exercise of Congressional military authority.[11] Thus, while Congress has the exclusive power to "declare War," there may be circumstances where the exercise of this power conflicts with the President's acknowledged role as the principal representative of the United States in matters of foreign relations.[12] Similarly, there may be situations where Congress impermissibly delegates its powers to the executive branch during wartime or other national exigency.[13]
The Constitution seems less ambiguous with respect to the importance of the relationship between federalism and the operation of the military. Congress is granted the power to "raise and support armies";[14] to "provide and maintain a Navy";[15] to "make Rules for the Government and Regulation of the land and Naval forces"; [16] to "pro- [Page 640] vide for calling forth the Militia";[17] and to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States."[18] The Militia Clause expressly reserves to the states "the Appointment of the Officers [of the Militia], and the Authority of training the Militia according to the discipline prescribed by Congress."[19]
This separate enumeration of powers with respect to the armed forces and with respect to the militia seemingly reflects an intention by the Framers that these military organizations operate according to separate guarantees. However, since 1933 the state militia have been operated as the United States National Guard, and have been classified as reserve components of the United States armed forces.[20] When the [Page 641] Supreme Court finally addressed the effect of this dual enlistment system, the Court left little doubt that federalism is only minimally relevant in the administration of the United States armed forces.
In Perpich v. Department of Defense,[21] a unanimous Supreme Court ruled that Congress can "authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peace time without either the consent of a state governor or the declaration of a national emergency."[22] At issue was the constitutionality of a statute[23] that prohibits state and territorial governors (including the authorities in Puerto Rico and the District of Columbia) from withholding their consent to the federal activation of National Guard units, when the governors' withholding is premised on objections to the "location, purpose, type, or schedule" of the duty. Governor Rudy Perpich of Minnesota had argued that this statute conflicted with the express reservation to the states in the Militia Clause of the "Authority of training the Militia according to the discipline prescribed by Congress."
The Supreme Court, speaking through Justice Stevens, disagreed with the governor, and interpreted the Militia Clause to provide Congress with an independent right to train the militia. Initially, the Court noted that "[t]he Congressional power to call forth the militia may in appropriate cases supplement its broader power to raise armies and provide for the common defense and general welfare, but it does not limit those powers."[24] The Court then provided three reasons why the Militia Clause actually "enhances" federal power. First, the Court noted that the Militia Clause authorizes Congress to provide for "organizing, arming, and disciplining the Militia," and argued:
It is by congressional choice that the available pool of citizens has been formed into organized units. Over the years, Congress has exercised this power in various ways, but its current choice of a dual enlistment system is just as permissible as the 1792 choice to have the members arm themselves.[25]
Next, the Court stated that because the Militia Clause authorizes Congress to provide for governing such part of the militia as may be employed in the service of the United States, Congress' "authority encompasses continued training while on duty."[26] Finally, the Court [Page 642] noted that the reservation to the states of the authority to train the militia is limited by the language "according to the discipline prescribed by Congress." The Court argued that this phrase provides Congress with authority to train the militia in "distant lands."[27]
The Court further argued that the reservation in the Militia Clause to the states of the authority to train the militia was merely an acknowledgement of the "supremacy of federal power in the area of military affairs."[28] The Court concluded that even where National Guard activation orders relate to training, there is no infringement upon the states' powers over the militia because these responsibilities are not "significantly affected."[29] The Supreme Court pointed out that if a federal training mission were to interfere with the State Guard's capacity to respond to local emergencies, the statute permits the governor to withhold consent to the activation of the units.[30] Furthermore, a governor "might also properly withhold consent to an active duty order if the order were so intrusive that it deprived the State of the power to train its forces effectively for local service."[31] Finally, the Court argued that with respect to military matters, the powers allowed to the states by existing statutes are "significant."[32]
The Court concluded by noting that the Constitution gives rise to a presumption that federal control over the armed forces is "exclusive," and that "[w]ere it not for the Militia Clause[ ], it might be possible to argue . . . that the constitutional allocation of powers precluded the formation of organized state militia."[33] The Court felt that the Constitution "subordinate[s] any such structural inferences to an express permission while also subjecting State militia to express federal limitations."[34] Because it concluded that the federal government has the right to train the militia without the declaration of any emergency, the Court ruled that the consent of the governors was "not constitutionally compelled."[35]
Perpich is in many ways one of the most significant Supreme Court decisions concerning federalism values that has been announced [Page 643] since Garcia v. San Antonio Metropolitan Transit Authority.[36] In Garcia, the Court overruled National League of Cities v. Usery,[37] which had held that the Commerce Clause[38] did not empower Congress to enforce the minimum-wage and overtime provisions of the Fair Labor Standards Act[39] against the states "in areas of traditional governmental functions."[40] Garcia instead ruled that these overtime and minimum- wage requirements were not, when applied to a municipally-operated mass transit system, destructive of state sovereignty or violative of any constitutional provision.[41] The Court, while admitting that "the States occupy a special and specific position in our constitutional system," argued that the "political process ensures that laws that unduly burden the States will not be promulgated."[42] Nonetheless, the Court acknowledged that "rare exceptions" exist where the Constitution "carve[s] out express elements of state sovereignty that Congress may not employ its delegated powers to displace."[43]
Perpich arguably is the first case to consider whether a particular provision in the Constitution constitutes one of the "rare exceptions" of state sovereignty that may not be displaced by Congressional action. The case clearly rules that, at least with respect to the Militia Clause, the answer is no. In reaching its decision the Court, in part, relies upon what might be described as a "modified" version of the processoriented view of federalism adopted by the Court in Garcia; the Court justifies its result by reference to several protections guaranteed to the states by Congress.[44] Because Perpich involves the interpretation of an express constitutional reservation of a state power, the case may be the broadest extension of Congressional authority into federalism protections that has, as yet, been upheld by the Supreme Court.
The partial elimination of the requirement that the governors consent to federal activation of their National Guards effectively limits [Page 644] the right of the states to train their "militia." This note seeks to demonstrate that the interpretation of constitutional guarantees by the Court in Perpich is misdirected. First, this note argues that, although the National Guard constitutes both an armed force and the militia, the militia powers reserved by the Constitution to the states should be respected even where Congress exercises its "plenary" Armies Clause powers. The note also will attempt to show that the Framers intended the states to retain a certain amount of autonomous control over the militia, and that the training of the militia was one power that was specifically left to the states. In addition, the note seeks to prove that the Framers foresaw that the President could activate the militia to meet the needs of a national exigency. This note argues that where such an exigency exists, the federal government has the right to activate the National Guard over the objections of the governors. However, for the federal government to override the objections of the states, the government must actually declare that an exigency exists.
This note further seeks to demonstrate that Perpich inadequately addressed the federalism values that were involved in the case. The note argues that the reservation to the states of the power to train the militia is one means whereby the Constitution effectively guarantees that the civilian government can supervise the military. This note will show that unlike the circumstances involved in Garcia, the political process is more effectively promoted by the actions of the states, not the federal government. If the President wishes to make use of the Guard to make a "show of force" to a foreign nation, the President has an obligation to declare his true intentions. While the actions of the governors in "vetoing" the use of the Guard for peacetime training exercises may interfere with the President's foreign policy intentions, such interference only occurs where the President has not faithfully declared that an emergency requiring the use of the Guard exists. Honest representative government actually is promoted by the actions of the governors, because the President either must make the necessary declaration or allow the states to train the Guard. Finally, this note suggests that if the Court in Perpich felt incompetent to interfere with a power dispute concerning the training of the National Guard, a better solution would have been to rule the case nonjusticiable.
BACKGROUND
Perpich arose from circumstances surrounding the Reagan administration's policy with respect to Nicaragua. Throughout the 1980s, tensions existed between the Republican administration in the [Page 645] White House and the left- wing Sandinista regime in power in Managua. In May 1985, the President formally determined that the government of Nicaragua "constitute[d] an unusual and extraordinary threat to the national security and foreign policy of the United States," and the President therefore declared a national emergency to deal with this "threat."[45]
Prior to this declaration, in March 1985, Governor George Deukmejian of California declined a request from the Department of Defense to send approximately 450 National Guardsmen to the "Pine Tree III" anti-armor training exercises near the Honduras-Nicaragua border. While stating that several considerations weighed in this decision, most notably a previously scheduled training exercise involving the California National Guard and the units of 10 other states, the governor admitted he had other reservations about the request.[46] The Texas National Guard subsequently replaced the California contingent; however, the use of its state Guard sparked a storm of protest in Texas related to the possible effects of American military presence in Central America.[47]
One year later, in January 1986, Governor Joseph E. Brennan of Maine refused a request by the Department of Defense to send 48 members of the Maine National Guard to Honduras as part of a road-building exercise. The governor voiced his concern that, given the existing volatile situation in Central America and the potential for this situation to be aggravated by American military presence, his Guardsmen's safety might be endangered.[48] Instead of road-building in Honduras, the governor ordered the adjutant general of the state to train the guardsmen on 40 road projects in Maine. Following Governor Brennan's actions, the governor of Ohio also denied a Pentagon request to supply National Guardsmen for training exercises in Central America.[49] Furthermore, the governors of Vermont, Massachusetts, Arizona, New York, and Washington announced that, if asked to send [Page 646] their National Guards to Central America, they would withhold their units as well.[50]
The governors' consent to the federal activation of the state National Guards was required by law. While the National Guard could be activated at any time during war or national emergency without the consent of the governors,[51] the United States Code authorized the activation of State National Guard members to peacetime federal status for fifteen days a year only if the governor consented to this action.[52] This "gubernatorial veto" read as follows:
[U]nits and members of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty . . . without the consent of the Governor of the State or Territory . . . . [53]
The Pentagon immediately requested a clarification from Congress of the dual state-federal enlistment status of the National Guard, and considered asking for legislation which would eliminate the gubernatorial consent requirement.[54] A Senate subcommittee thereafter held hearings to determine whether the statutory requirements for gubernatorial consent were necessary.[55]
No immediate action was taken at the conclusion of the Senate hearings. However, on August 14, 1986, Representative G.V. Montgomery of Mississippi submitted a floor amendment to the proposed National Defense Authorization Act of 1987.[56] The Montgomery Amendment provided that, where the Pentagon wished to order a National Guard unit to active duty outside of the United States, a governor could not prohibit this action by withholding her consent on account of "objection to the location, purpose, type, or scheduling of such active duty."[57] The amendment passed in the House by a vote of [Page 647] 261-159 after only ten minutes of debate.[58] The provision subsequently was adopted in a slightly revised form by the Senate as a technical amendment.[59]
As enacted, the Montgomery Amendment effectively eliminated the gubernatorial consent requirement. Now codified in Title 10 of the United States Code, the provision reads as follows:
The consent of a Governor [necessary for effecting an order to active duty of the National Guard] may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty.[60]
The statute was immediately challenged both by Governor Rudy Perpich of Minnesota[61] and Governor Michael Dukakis of Massachusetts.[62] Each governor argued that, but for this provision, they would not have consented to active duty deployment of National Guard units in Honduras which were ordered in separate incidents by the National Guard Bureau in 1987.[63]
In Dukakis v. United States Department of Defense,[64] Judge Robert Keeton of the District of Massachusetts ruled that, although the National Guard constitutes the modern incarnation of the militia, the Montgomery Amendment was a valid exercise of Congress' article I power. Relying upon the powers conferred to Congress under the Armies Clause of the United States Constitution,[65] Judge Keeton ruled that the reservation to the states of the right to train the militia could be overridden by federal activation of the National Guard to active [Page 648] duty status.[66] The First Circuit agreed and affirmed in a per curiam opinion.[67] The United States Supreme Court denied certiorari.[68]
In the companion case, Perpich v. United States Department of Defense,[69] Chief Judge Donald Alsop of the District of Minnesota ruled that because Congress' authority to provide for a national defense was plenary and because the National Guard existed under a dual enlistment system, the Militia Clause failed to act as a restraint to any action concerning the Guard, including training, ordered by the government. A divided three-judge panel of the Eighth Circuit reversed and held that the original intent of the Framers of the Constitution indicated that the militia only were to be called into federal service in the event of an emergency or exigency, and therefore the Montgomery Amendment was an unconstitutional infringement of state authority.[70] Thereafter, the Eighth Circuit granted rehearing and, sitting en banc, voted 7- 2 to reverse the earlier panel decision.[71] The nine-judge panel of the Eighth Circuit agreed with the Dukakis decision that the Armies Clause conferred plenary powers to Congress in the area of national defense, and ruled that "[t]he reservation to the States of authority to train the Militia does not conflict with Congress' authority to raise armies for the common defense and to control the training of federal reserve forces."[72] Consequently, the Court decided that the statute was constitutional. A vigorous dissent argued that the majority had ignored the clear intent of the Framers and had "written the Militia Clause out of the United States Constitution."[73] Thereafter the Supreme Court granted certiorari[74] and affirmed.[75]
PLENARY POWERS AND THE ARMIES CLAUSE
The lower courts in both Perpich and Dukakis used a somewhat different rationale than that of the Supreme Court in ruling that the Montgomery Amendment was constitutional. The lower courts noted that previous Supreme Court decisions recognized that the powers conferred by the Armies Clause were "plenary."[76] Because the National [Page 649] Guard possesses the dual status of a militia and an armed force, the lower courts ruled that the Montgomery Amendment was a valid exercise of the federal Armies Clause power. Although the Supreme Court actually did not rely upon this argument to reach its decision in Perpich, the Court nonetheless was heavily influenced by the suggestion that the Armies Clause limited the effect of the training exception contained within the Militia Clause.[77] Yet, there are reasons why the Armies Clause does not confer the sort of authority that the lower courts claimed. Thus, because the Supreme Court appeared to be influenced by the lower courts' arguments regarding the Armies Clause powers, and because the appeal by the governor in Perpich was from a holding that rested upon these Armies Clause considerations, it is important to discuss the plenary powers issue at the outset.
The lower courts in Perpich relied upon two decisions to assert that the Armies Clause conferred plenary authority upon Congress to direct the National Guard¾the Selective Draft Law Cases[78] and Cox v. Wood.[79] The Supreme Court in Perpich admitted that its own decision was "presupposed" by the first of these earlier rulings, the Selective Draft Law Cases, and the Court cited with approval the second, Cox v. Wood.[80] Citing Tarble's Case,[81] the Supreme Court further noted that "several constitutional provisions commit matters of foreign policy and military affairs to the exclusive control of the National Government," and that "the constitutional allocation of powers in this realm [gives] rise to a presumption that federal control over the armed forces [is] exclusive."[82]
Both the Selective Draft Law Cases and Cox v. Wood were unanimous opinions authored by Chief Justice White that related to circumstances surrounding World War I. In response to an opinion by Attorney General George Wickersham that the Militia Clause prohibited the National Guard from being sent with the regular army to occupy a foreign country,[83] and because of the emergence of war in Europe, Congress had passed the National Defense Act of 1916,[84] [Page 650] which incorporated the Guard within the Army of the United States.[85] In addition to requiring every officer and enlisted man to take a dual oath both to the President and to the Governor, the statute included a provision that allowed the President to draft into federal service any member of the Guard whenever Congress authorized the use of troops in excess of the regular forces.[86] When the President exercised this power during World War I through the Selective Draft Law of 1917,[87] this action was challenged as unconstitutional in light of the prohibition in the Militia Clause against the use of the militia by the government for any purpose other than "to execute the Laws of the Union, suppress Insurrections and repel Invasions."
In the Selective Draft Law Cases, the Court rejected the argument that Congress lacked any right to require compulsory military service. The Court instead found such authority in the constitutional grants to Congress to declare war, to raise and support armies, and to make all laws necessary to carry into effect these powers.[88] The Court additionally rejected the argument that citizens could only be drafted non-consensually into an army whose military purposes were identical to those of the Militia Clause. The Court noted that the Armies and Militia Clauses were different, and stated:
The right on the one hand of Congress under the Confederation to call on the States for forces and the duty on the other of the States to furnish when called, embraced the complete power of government over the subject. When the two were combined and were delegated to Congress all governmental power on that subject was conferred, a result manifested not only by the grant made but by the limitation expressly put upon the States on the subject. The army sphere therefore embraces such complete authority. But the duty of exerting the power thus conferred in all its plenitude was not made at once obligatory but was wisely left to depend upon the discretion of Congress as to the arising of the exigencies which would call it in part or in whole into play. There was left therefore under the sway of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies. This did not diminish the military power or curb the full potential of the right to exert it but left an area of authority requiring to be provided for (the militia area) unless and until by the exertion of the military power of Congress [Page 651] that area had been circumscribed or totally disappeared.[89]
Although the Court in the Selective Draft Law Cases suggested that Congress' Armies Clause powers were not limited by the Militia Clause, the Court also recognized that the Militia Clause included independent constraints to federal power. The Court noted:
[The Militia Clause] diminished the occasion for the exertion by Congress of its military power beyond the strict necessities for its exercise by giving the power to Congress to direct the organization and training of the militia (evidently to prepare such militia in the event of the exercise of the army power) although leaving the carrying out of such command to the States. It further conduced to the same result by delegating to Congress the right to call on occasions which were specified for the militia force, thus again obviating the necessity for exercising the army power to the extent of being ready for every conceivable contingency.[90]
The Court concluded: "Because . . . the power granted to Congress to raise armies in its potentiality was susceptible of narrowing the area over which the militia clause operated, affords [sic] no ground for confounding the two areas which were distinct and separate to the end of confusing both the powers and thus weakening or destroying both."[91]
The Selective Draft Law Cases were decided in the context of actual war. The opinion does not suggest that the Armies Clause is so broad as to encompass federal training of the militia during times of peace. In fact, the government had stated in its brief that "the President may not call out the militia for foreign service in times of peace" and suggested instead that "in this instance it could not even be said that an emergency had not arisen, or that the President had not wisely exercised his discretion, to repel invasion."[92] Furthermore, the Court's conclusion that the right to conduct a draft was an incident of the combination of Congress' war and armies powers suggests that the immediacy of hostilities was important.
Similarly, Cox v. Wood rejected an argument that compulsory service was unconstitutional unless the purposes of the draft were limited to the defense of the United States, not military duty in a foreign nation. The decision, like that in the Selective Draft Law Cases, was predicated on the immediacy of war. In fact, the Court interpreted the Selective Draft Law Cases as follows: [Page 652]
[O]n the face of the opinion delivered in those cases the constitutional power of Congress to compel the military service which the assailed law commanded was based on the following propositions: (a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were not qualified or restricted by the provisions of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that from these principles it also follows that the power to call for military duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived and knew no limit deduced from a separate, and for the purpose of the war power, wholly incidental, if not irrelevant and subordinate, provision concerning the militia, found in the Constitution.[93]
The Court recognized that the authority to enact the Selective Draft Law was an exercise not only of the power to raise and support armies, but also of the related power to declare war. Cox v. Wood gives no support for the proposition that the Armies Clause may be used to circumscribe the training reservation within the Militia Clause, at least not if the ascribed motive is federal training of the militia during times of peace.[94]
The citation by the Court in Perpich to Tarble's Case is also somewhat ironic. There the Court ruled that a state judge had no jurisdiction to grant habeas corpus to require the release of a prisoner from federal custody. In dicta, the Court noted that the Constitution assigned the federal government the right to "raise and support armies" and to "provide for the government and regulation of land and naval forces," and wrote: "The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive."[95] The Court also noted that Congress "can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offences, and prescribe their punishment."[96] Earlier in the opinion the Court described at great length the [Page 653] "independent" nature of the state and federal governments,[97] and defined these two powers as "separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres."[98] The premise for asserting a paramount right of the federal courts to issue habeas corpus rested upon the Supremacy Clause.[99] This clause actually would suggest that a state power is paramount to federal legislation where the state power exists because of an independent constitutional grant. Furthermore, the Supreme Court had already ruled that, with respect to the militia, state courts had jurisdiction to try cases concerning a soldier's failing to serve, even where the federal government had passed legislation pursuant to the Militia Clause criminalizing the conduct.[100] It seems strange, therefore, that the Supreme Court in Perpich cited a case that recognized the sovereignty of the states and involved a constitutional premise that arguably dictated a contrary result.[101]
Even assuming that the federal government's Armies Clause powers are plenary, there is no reason to assume they are so broad as to be paramount to the exercise of independent constitutional limits. In fact, the Supreme Court has frequently stated that separate constitutional provisions limit the plenary authority given to Congress to regulate military affairs.[102] Where the independent constitutional limitation is contained within the enumerated powers, it would seem that the need for accommodation is even greater. Consequently, because the state training exception contained within the Militia Clause should be seen as an independent constitutional grant, the training of the National Guard should accommodate this right.
The militia and the army are distinct entities. The National [Page 654] Guard combines elements of both these organizations. Yet, if the power to raise and support armies includes the power to train the National Guard during times of peace, there appears to be no distinction between the army and the National Guard. No independent limits would exist as to when the federal government could call the Guard into federal service, and no limits would exist as to how Congress could decide to exercise this power.[103]
Nonetheless, the Supreme Court in Perpich actually decided the National Guard issue according to a different premise. The Court did not rest its decision upon the Armies Clause powers, and instead interpreted the Militia Clause to provide the federal government with an independent right to train the militia. In so ruling, the Court not only ignored earlier decisions that implied that the federal government possessed limited powers with respect to the militia,[104] but also effectively ignored the original intent of the framers.
ORIGINAL INTENT
The Militia Clause of the United States Constitution clearly delegates broad powers to Congress. It does not, however, provide Congress with plenary powers over the militia. Rather, the Militia Clause includes limitations and reads as follows:
The Congress shall have Power . . .
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . . . [105]
The plain language of the clause limits congressional authority. It enumerates the three situations in which the Congress may call forth the militia, and specifically reserves to the states the right of officering and training this body. Yet, in Perpich the Supreme Court authorized the peacetime training of the National Guard by the federal government despite the express language of the Militia Clause limiting the [Page 655] incidences in which the militia could be "in the Service of the United States."
Prior to the decision in Perpich, every court that interpreted "calling forth the Militia" had consistently held that the Constitution required that Congress demonstrate some immediate threat to either the security of the nation as a whole, or to the security of individual states.[106] Under this interpretation, the militia could not be activated to federal status absent some immediate emergency.[107] Furthermore, until Perpich, the Supreme Court had never suggested that the reservation of the "[a]uthority of training the Militia according to the discipline prescribed by Congress" was anything but an unconditional grant of power to the states which limited Congressional control over the regulation of the militia. [108] In fact, the Supreme Court previously had recognized that the Framers were distrustful of standing armies, and this distrust was manifested in a constitutional scheme which, as originally intended, was meant to make the militia the nation's primary defensive force.[109] This view reflects a more honest assessment of the Framers' intentions.
The Federal Convention
Under the Articles of Confederation, each state had been obli- [Page 656] gated to "keep up a well regulated and disciplined militia,"[110] and to raise "armed and equipped" quotas of land forces requisitioned by Congress.[111] However, this system failed due to the independent power of the states. Thus, the representatives who met at Philadelphia in 1787 were acutely aware of the necessity of creating a more effective defense system,[112] and yet many delegates were reluctant to establish an armed force that would be controlled primarily by the federal government.[113] In fact, though he favored restructuring the militia, even James Madison expressed his concern that a standing army might threaten the nation's security.[114]
Nonetheless, the delegates ultimately agreed upon a scheme wherein armies could be raised and supported exclusively by Congress, subject to the reservation that the money necessary for such action would be available only for a limited duration.[115] This power to raise armies only developed because the delegates intended the Constitution to implement a system wherein the militia, as opposed to a pre-existing army, would constitute the primary defensive mechanism for the United States.[116] Consequently, the Militia Clause evolved as a politi-[Page 657] cal compromise that satisfied competing concerns of delegates who sought greater uniformity in the militia, and delegates who jealously guarded the right of the states to control this military body.
Early in the Convention, delegates voiced their distrust of the role that the military would play vis-à-vis the states. One proposal would have authorized the "use of force by the Union" against delinquent states that failed to fulfill their duties under the Constitution.[117] The proposal was abandoned after James Madison noted that the "use of force against a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."[118] Madison instead suggested that a "system" should be framed "as might render this resource unnecessary."[119] His wish ultimately was satisfied when the Federal Convention drafted that portion of the Militia Clause that authorizes the Congress to call forth the militia to meet the exigencies of an "Insurrection" and to "execute the laws of the Union."[120] In each of these circumstances the President is authorized to use the militia to ensure that the states faith-fully fulfill constitutional obligations, but the use of force occurs only after there has been a demonstrated emergency.
As the Convention focused upon the relationship that would exist between the states and the federal government, the role of the militia itself became the source of debate. One individual who assumed a prominent role in drafting what ultimately became the Militia Clause was Delegate George Mason of Virginia. Mason had argued that the people had been "constantly averse" to giving the federal government broad powers that negated state functions, and had argued that "fire and water [were] not more incompatible than such a mixture of civil liberty and military execution."[121] Yet, despite his concerns regarding the function of the federal government, Mason also felt that the best way to obviate the effects of a standing army was to create a system [Page 658] whereby the militia would be regulated by Congress.[122] In an effort to avoid an impasse between competing interests of the Federalists and the anti- Federalists, Mason introduced three successive proposals for a constitutional provision that would regulate the militia.[123]
The first of Mason's proposals was the broadest, and favored the interests of the Federalists. It added to the authority of the Legislature of the United States "a power to regulate the militia."[124] During debate, Mason "moved as an additional power 'to make laws for the regulation and discipline of the militia of the several States reserving to the States the appointment of the officers."'[125] Mason asserted that "uniformity" was "necessary in the regulation of the Militia throughout the Union."[126] Obviously, the concerns of the anti-Federalists had forced Mason to concede the right to appoint the officers of the militia.
Mason withdrew his original proposal before vote, and moved for a power "to make laws for regulating and disciplining the militia, not exceeding one tenth part in any one year, and reserving the appointment of officers to the States."[127] Mason apparently felt that a select militia "would be in fact as much as the General Government could advantageously be charged with."[128] Because the idea of a select militia met with hostility from a number of other delegates,[129] there was a [Page 659] motion to reinstate Mason's original provision.[130] The Convention thereafter was unable to reach a decision on the proper role of the militia, and it was instead decided that the matter would be sent to committee.[131]
Mason's proposals are important because they demonstrate that prior to the suggestion that the states were to train the militia, the delegates at the Federal Convention were unable to agree upon a constitutional allocation of power whereby the federal government could ever regulate this organization. In fact, the National Guard presently constitutes a select militia, and yet the delegates at the Federal Convention rejected Mason's suggestion that the government should be able to regulate such a force without restriction. Furthermore, Mason's decision to withdraw his original provision and his addition of a grant to the states of a right to officer the militia indicate that Mason recognized that the Federalists would have to concede some measure of power regarding the control of the militia.
The committee presented the Convention with a workable compromise. The proposal for the Militia Clause now read: "To make laws for organizing arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S. reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the United States."[132] Initially, Delegates Roger Sherman of Connecticut and Oliver Ellsworth of Connecticut objected to the inclusion of the last phrase, with Ellsworth remarking that "the term discipline was of vast extent and might be so expounded as to include all power on the subject."[133] However, Delegate Rufus King of Massachusetts provided an explanation for the new clause:
Mr. King, by way of explanation, said that by organizing, the Committee meant, proportioning the officers and men¾by arming, specifying the kind size and caliber of arms¾and by disciplining prescribing the manual exercise evolutions &c.[134]
King's explanation suggests that the Supreme Court in Perpich was incorrect when it asserted that the Militia Clause provides Congress with independent power to train the National Guard. Instead, the lan-[Page 660] guage "according to the discipline prescribed by Congress" merely provides that Congress may choose a training methodology for the militia, not that Congress actually may carry out such training. Furthermore, while the Supreme Court in Perpich may have been correct that the National Guard dual enlistment system is a permissible extension of Congressional power,[135] King's explanation suggests that the Framers did not envision that the militia would be incorporated as a component of the army. Certainly, nothing in King's explanation of the Militia Clause supports the Supreme Court's conclusion that the power to organize the militia limits the states' authority to train this organization.
King further explained the meaning of the Militia Clause. He stated that "arming" meant both "provid[ing] for uniformity of arms" and "the authority to regulate the modes of furnishing, either by the Militia themselves, the State Governments, or the National Treasury."[136] He further noted that "laws for disciplining, must involve penalties and every thing necessary for enforcing penalties."[137] Again, King did not suggest that the Congressional powers with respect to the militia included an independent right to train this force. Rather, King's explanation suggests that the federal powers were designed to ensure uniformity among the state militia through legislative enactment.
There are other discussions which suggest that the delegates at the Federal Convention did not intend the federal government to train the militia. Much of the debate concerning the Militia Clause focused upon what the states were relinquishing. After King's explanations, Delegates Ellsworth and Sherman moved separately to amend the committee proposal and to insert a provision which would have read: "To establish an uniformity of arms, exercise and organization for the Militia, and to provide for the Government of them when called into the service of the United States."[138] The purpose of this second motion "was to refer the plan for the Militia to the General Government [Page 661] but to leave the execution of it to the State Governments."[139]
James Madison responded by arguing that "[t]he Discipline of the Militia [was] evidently a National concern, and ought to be provided for in the National Constitution."[140] He believed that, given the propensity of the states to neglect their militia, "the more they are consolidated into one nation, the less each will rely on its own interior provisions for its safety and the less prepare its Militia for that purpose."[141] However, Jonathan Dayton and Charles Coteworth Pinckney clearly disagreed. Dayton was "against so absolute a uniformity as had been proposed by Sherman and Ellsworth, and felt that distinctions such as the types of armory and soldiers should vary within the militia of the individual states."[142] Pinckney preferred the clause reported by the Committee, but he interpreted "discipline" as meaning "the case of fines &c."[143] Again, not one of the delegates, including Madison, interpreted "discipline" to limit the states' training authority.
The Convention ultimately defeated the proposal of Sherman and Ellsworth and, after inserting minor revisions and after debate as to whether it was proper for the states to appoint the officers of the militia,[144] the delegates agreed to accept the committee's clause. By this compromise, the Convention provided that the militia could be called forth by the federal government during times of crisis, and Congress was authorized to organize, arm, and prescribe a system of military conduct for this force. However, the authority of training the militia was left to the states.
Thus, the debates at the Federal Convention clearly demonstrate that the Supreme Court in Perpich was incorrect to assert that the Militia Clause "enhances" the power of the federal government so that the federal government can train the militia during times of peace. The Militia Clause was the product of a cooperative effort between the Federalists and the anti-Federalists, "with Congress establishing and setting disciplinary policy for the militia and the states training individual units and making disciplinary policy."[145] Each of the provisions that were proposed to the Convention granted successively more authority to the states. The final Militia Clause granted the national [Page 662] legislature the authority to organize and arm the Militia as well as "to prescribe methods of training, rules of conduct for the militia, penalties for the violation of such rules, and the means to administer these penalties."[146] However, in all other respects "the militia was to be that of the states and under major control by the states."[147] This state control included the exclusive authority to train this force.
The State Ratification Conventions
That the militia was to be trained by the states and not by Congress also is apparent from the later debates of the drafters.[148] Following the Constitutional Convention, the Federalists sought to convince delegates at the state conventions that ratification of the federal charter would benefit the Union. One issue was the proper relationship between the states and the federal government with respect to the militia.
At the Virginia Convention there was extensive discussion of the position of the militia in the new constitutional scheme. Patrick Henry was opposed to ratification, and was particularly unhappy that the federal government was granted any authority to regulate the militia:
To the state legislatures is given the power of "appointing officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it be concurrent in other respects. If the states have the right of arming them, & c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd.[149]
Henry's assertion that the federal government retained a concurrent [Page 663] power to train the militia is precisely the argument that was accepted by the Supreme Court in Perpich. Yet, the statements of other delegates demonstrate that Henry's arguments did not command a consensus. For instance, Wilson Nicholas responded to Henry's attack:
The Congress is to have power "to provide for the arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Another part tells you that they are to provide for calling them forth, to execute the laws of the Union, suppress insurrections, and repel invasions. These powers amount to this - that they can only call them forth in these three cases, and that they can only govern them as may be in the actual service of the United States.[150]
The holding in Perpich that the federal government need not declare an emergency before calling forth the militia is inapposite to the statements made by Nicholas. Peacetime training is inconsistent with the notion that the President may only call forth the militia for the purposes of insurrection, invasion, and execution of the laws of the Union. In fact, Nicholas himself noted that "[t]here is a great difference between having the power [of calling forth the militia] in three cases, and in all cases."[151]
Nicholas's assertions were supported by James Madison, who sought to calm the fears of the anti-Federalists that the states had relinquished all control of the militia. During the debates at the Virginia Convention Madison emphasized that "[t]he authority of training the militia, and appointing the officers, is reserved to the states."[152] Madison did not suggest that this authority was qualified. In fact, he reiterated the sentiments of Wilson Nicholas and stated: "Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia . . . . "[153] He re-emphasized this point later when he argued: "The states are to have the authority of training the militia according to congressional discipline; and of governing them at all times when not in the service of the Union."[154] Madison never suggested that "congressional discipline" included an independent authority for the federal government to train the militia.
In fact, Madison's statements consistently acknowledge that the power to train the militia rested in the states. In responding to ques-[Page 664] tions from Patrick Henry as to whether there were any militia powers retained by the states, Madison argued that "the state governments might do what they thought proper with the militia, when they were not in the actual service of the United States."[155] The states "might make use of [the militia] to suppress insurrections, quell riots, &c., and call on the general government for the militia of any other state, to aid them, if necessary."[156] Madison explained:
The state governments are to govern the militia when not called forth for general national purposes; and Congress is to govern such part only as may be in the actual service of the Union. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the service of the United States. It is, then, clear that the states govern them when they are not. [157]
Because Madison earlier had noted that the militia only could be called forth in "certain cases"¾during insurrection, invasion, and where necessary to execute the laws of the Union [158]¾it was only these situations that constituted the "general national purposes" during which the militia was in the "actual service" of the United States. Consequently, the federal government never could call forth the militia for peacetime training. The states necessarily retained that function. Therefore, Perpich reflects a view of the Constitution that is fundamentally at odds with one of the document's principal drafters.
Other delegates expressed views similar to those of Nicholas and Madison. For instance, John Marshall reiterated that Congress could only call forth the militia to suppress insurrections and repel invasions.[159] And William Grayson interpreted the powers of Congress to organize and to discipline the militia as "enab[ing] the government to make laws for regulating them, and inflicting punishments for disobedience, neglect, &c."[160] Yet neither Marshall, nor Grayson, nor any other delegate suggested that the authority of training the militia re-[Page 665] sided in the federal government.[161] Rather, Marshall and the other delegates apparently felt that the focus of concern merely was whether the states could themselves call forth the militia.[162]
Delegates at other state ratification conventions expressed concerns and beliefs that were similar to those expressed at the Virginia Convention. For instance, in responding to the contention that members of Congress could use the militia despotically to remain in power beyond their official terms of office, William MacLaine at the North Carolina Convention argued:
I would ask that gentleman who is so much afraid [the Constitution] will destroy our liberties, why he is not as much afraid of our state legislature; for they have much more power than we are now proposing to give this general government. They have an unlimited control over the purse and sword; yet no complaints are made. Why is he not as much afraid that our legislature will call out the militia to destroy our liberties? . . . The idea of our militia being made use of, as an instrument to destroy our liberties, is almost too absurd to merit refutation.[163]
MacLaine's sentiments indicate that powers to call forth the militia are limited. The states can only possess "more power" if the federal government possesses less. Similarly, Robert Livingston at the New York Convention, suggested that the states retained a power to regulate the militia. [164] The power to regulate is broader than the mere power to train. Therefore, it seems illogical to presume that the federal government could limit state authority over the militia if the Constitution did not "take away" such broader power.
The debates at the ratification conventions routinely focused upon the powers that the states retained. These discussions do not support the conclusion that Congress possesses an independent right to train the militia. At a minimum, the discussions suggest that Perpich reflects a minority viewpoint, as it was the Federalists who frequently reiterated that the states retained the authority to train the militia. In fact, several states proposed amendments aimed at clarifying the role [Page 666] of the federal government in this area. These amendments were designed to limit or specify under what circumstances it was appropriate for Congress to regulate this body.[165] Throughout the state conventions delegates sought merely to define limitations with respect to the federal government's militia powers. The states' express power to train the militia was both understood and accepted.
Contemporary Documents
Contemporary writings also demonstrate that the Founders did not believe the militia could be trained by the government during peacetime. For instance, in The Federalist No. 28 Alexander Hamilton discussed the need for the national government to use force when circumstances warranted. He described such situations as "emergencies."[166] In The Federalist No. 29 he argued that "[t]he power of regulating the militia and of commanding its services in times of insurrection and invasion are natural incidents to the duties of super-intending the common defense, and watching over the internal peace of the Confederacy."[167] Hamilton noted:
[U]niformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. . . . This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority.[168]
Hamilton also specifically underscored the fact that the authority of training the militia was left to the states.[169] He did not suggest that the federal government's power to regulate this force was unqualified, or that the Congressional authority included a power independent [Page 667] from the states to train the militia. Furthermore, Hamilton's identification of three situations where federal command of the militia was warranted¾"insurrection," "invasion," and "for the public defense"¾share the common characteristic of a national exigency.[170] These situations do not encompass peacetime activities, and they certainly do not suggest that Hamilton envisioned that the government would train the militia when no such emergencies existed.
Hamilton also did not argue that the authority to regulate the militia was less important than the Congressional power to raise and support armies. Instead, he suggested the militia power was an entirely separate concern that existed because of the need to meet national emergencies:
If standing armies are dangerous to liberty, an efficacious power over the militia in the same body ought, as far as possible, to take away the inducement and pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter.[171]
Hamilton's statement suggests that rather than "enhancing" federal powers, the Militia Clause actually limits the circumstances in which the government may exercise its military authority. In fact, Hamilton's statement suggests that the Militia Clause deliberately incorporates a national emergency component precisely because the drafters feared the broad extent of the Armies Clause powers.
Hamilton's other discussions further clarify his position that the militia power was meant to be a separate limitation to the federal government's national defense powers. In The Federalist No. 24 Hamilton noted that the militia, while "indispensable," was too inefficient to ensure peacetime security.[172] In The Federalist No. 25 he argued that the [Page 668] powers over national defense were justifiably withheld from the states, and that for this reason the militia was not meant to be the "natural bulwark" of the country "at all times equal to the national defense."[173] However, in The Federalist No. 26 he discussed the reason and need for raising armies during peacetime, and he added:
It is not easy to conceive a possibility that dangers so formidable can assail the whole Union as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary.[174]
Hamilton envisioned the militia as an addition to the national defense structure. Consequently, he concluded in The Federalist No. 28 that it would be a "long time" before the United States could "maintain a large army."[175] He suggested that the states were themselves a check upon the federal government's ability to raise armies, noting that the general populace "through the medium of their State governments, [can] take measures for their own defense."[176] Hamilton's writings thus consistently indicate that the militia powers are independent from those that establish a national defense structure.
Hamilton also suggested that the federal government could never completely usurp control of the state militia, regardless of the government's own powers. In The Federalist No. 29 he emphasized the fact that the states retained "the sole and exclusive appointment of the officers."[177] Hamilton argued that "this circumstance will always secure [the states] a preponderating influence over the militia."[178] Because he deemed the appointment of the officers of the militia to be an "exclusive" power reserved to the states, it is logical to assume that Hamilton considered the training of the militia also to be an "exclusive" right. These powers are conferred to the states within the same sentence in the Constitution, and earlier in The Federalist No. 29 Hamilton had emphasized this language. [179]
Hamilton's writings suggest that the Supreme Court in Perpich may have been correct that "[t]he congressional power to call forth the militia may in appropriate cases supplement its broader power to raise [Page 669] armies and provide for the common defense . . . . "[180] Hamilton himself used the expression "auxiliary" to describe the militia, and noted that the militia was "not equal to the national defense." However, it does not follow that the federal power to call forth the militia "does not limit [Congressional military] powers."[181] Hamilton's writings indicate that insofar as the militia was meant to be a supplement to the armed forces, the rights retained by the states within the Militia Clause were meant as independent limits to federal authority.
In The Federalist Papers James Madison also described the militia powers as independent from those designed to guarantee a national defense system. In The Federalist No. 46 Madison contrasted these separate powers: "Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government: still it would not be going too far to say that the State governments with the people on their side would be able to repel the danger."[182] He argued that "[I]t may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops."[183] The fact that the militia powers effectively guaranteed that Congress could not suppress the populace indicates that the militia powers themselves limited federal authority. Such power hardly could exist unless the militia powers were not meant to be limited by the federal Armies Clause powers.
In The Federalist No. 41 Madison noted that the federal government required certain powers in order to guarantee "[s]ecurity against foreign danger." [184] These powers included "regulating and calling forth the militia."[185] However, Madison did not add training the militia as a power incident to national defense. And, in The Federalist No. 56 Madison briefly discussed the "regulation of the militia" by noting that "[t]he art of war teaches general principles of organization, movement and discipline, which apply universally."[186] Again, Madison did not suggest that such regulation included actual training of the militia. In fact, nowhere in The Federalist Papers did Madison or any of the other authors ever assert that such federal power existed.
Blackstone's Commentaries also may provide some insight as to [Page 670] the meaning of the Militia Clause. In discussing the right of the English Crown to regulate its militia, Blackstone stated:
[The militia] are not compellable to march out of their countries, unless in case of invasion or actual rebellion within the realm . . . , nor in any case compellable to march out of the kingdom. They are to be exercised at stated times; and their discipline in general is liberal and easy; but when drawn into actual service, they are subject to the rigours of martial law, as necessary to keep them in order.[187]
Blackstone described an organization that was obviously very similar to the post-Revolutionary War American militia. Rebellion and invasion were two situations to which the Militia Clause clearly was meant to apply. It is possible, therefore, that the Militia Clause as drafted incorporated the earlier rules regulating militia powers, and that the American militia also could not be compelled to march beyond national borders. Furthermore, Blackstone clearly interpreted "discipline" to mean something other than actual training, because he identified the "exercise" of the militia to be a distinct function of the Crown (as opposed to the "discipline" of the militia).[188] Blackstone's distinction conforms with later definitions of "discipline" that focus upon punishment.[189] Certainly, Blackstone's definition is not consonant with the suggestion in Perpich that "Congressional discipline" provides the federal government with the authority to train the militia in distant lands. At most, such militia "discipline" includes specifica-[Page 671] tions as to manual exercise, as was suggested by Rufus King at the Federal Convention.[190]
Finally, the original militia acts may provide some insight as to what the Framers considered to be the proper role of the federal government. The Second Congress enacted two statutes regulating the use of the militia. The first of these acts specified the circumstances when the President could call forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions. [191] Section one identified the President's powers with respect to the circumstances of invasion and insurrection:
[W]henever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States, to call forth such number of the militia of the state or states most convenient to the place of danger . . . ; and in case of insurrection in any state, against the government thereof, it shall be lawful for the President of the United States, . . . to call forth such number of the militia of any other state or states, . . . to suppress such insurrection.[192]
Section two of the Act specified the circumstances where the President could call forth the militia "to execute the laws of the land." It read as follows:
[W]henever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings . . . it shall be lawful for the President of the United States to call forth the militia of such state to suppress such combinations, and to cause the laws to be duly executed.[193]
Arguably, these provisions gave the President the power to send the militia to foreign countries when there was "imminent danger of invasion." However, nothing in the Act suggests that the original Congress envisioned that the federal government possessed any authority to actually train the militia abroad. At a minimum, the Act suggests that for the government to assert such power would require a national emergency.[194]
The second Act[195] concerned the arming and organization of the [Page 672] militia. This Act required "every free able-bodied white male citizen . . . of the age of eighteen years, and under the age of forty-five years" to enroll within the militia.[196] The Act also provided that every state was to appoint an adjutant general who was "to receive from the several officers of the different corps throughout the state, returns of the militia under their command, reporting the actual situation of their arms, accoutrements, and ammunition, their delinquencies, and every other thing which relates to the advancement of good order and discipline."[197] Referring to "rules of discipline" that had been established during the Revolutionary War, the Militia Act required "the commanding officers at every muster . . . to cause the militia to be exercised and trained agreeably to [these] rules of discipline."[198] Thus, the Militia Act contemplated "training" to be more than mere "exercise," and specifically provided that the states were to conduct such training.
With respect to the militia, the primary concern of the Framers was uniformity and discipline, not control of the training process. The fact that the Militia Clause authorizes Congress to provide for governing such part of the militia as may be employed by the United States probably does "encompass [] continued training while on active duty."[199] However, the militia only may be activated to federal status in order "to execute the Laws of the Union, suppress Insurrections and repel Invasions."[200] The Framers did not suggest that these three situations occurred in peacetime, nor could they. The Framers never conceived that the Clause provided an independent grant to the government of the authority to train the militia. Perpich therefore effectively ignored the intentions of those who drafted the Militia Clause.
FEDERALISM VALUES
The decision in Perpich is questionable not merely because it misconstrues original intent. While the Supreme Court denied as much, its interpretation of the Militia Clause effectively nullified a state power expressly reserved to the states by the Constitution.[201] In fact, the addition of another justification for the decision¾that the Militia Clause "merely recognizes the supremacy of federal power in the area of military affairs"[202]¾betrays the lack of textual support for the Court's ruling. Yet, this additional justification also clearly implicates [Page 673] federalism values, although the opinion never explicitly refers to federalism by name. Because the Supreme Court failed to address the importance of these federalism values, the decision's analysis possesses additional flaws.
Judicial Review of Federalism Limits
The Court in Perpich argued that its decision had not deprived the states of any significant power with respect to the militia. The Court noted that the federal government provided all the "funding, the materiel, and the leadership" for the National Guard,[203] and added that "[n]either the State's basic training responsibility, nor its ability to rely on its own Guard in state emergency situations, [was] significantly affected" by the Montgomery Amendment.[204] To support this conclusion, the Court cited a statute that provides that a state may, at its own expense, provide for and maintain a defense force that is exempt from being drafted into the United States armed forces.[205] Due to this statute, the Court continued, there was "no basis for an argument that the federal statutory scheme deprives [a state] of any constitutional entitlement to a separate militia of its own."[206] The Court concluded by observing that "[i]n light of the Constitution's more general plan for providing for the common defense, the powers allowed to the States by existing statutes are significant."[207]
In citing legislative protections to support the assertion that the states were not deprived of a sovereign power, the Court in Perpich effectively reiterated sentiments about state constitutional powers made previously in Garcia v. San Antonio Metropolitan Transit Authority.[208] Garcia rested upon a conclusion that any tenth amendment limits on congressional authority to regulate state activities "are structural, not substantive¾i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity."[209] Garcia argued that "[a]part from the limitation on federal authority in [Page 674] the delegated nature of Congress' Article I powers, the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself."[210] However, Perpich did not involve an interpretation of the tenth amendment. Rather, Perpich involved the unique problem of determining to what extent Congress' article I powers may themselves expressly limit federal authority. Consequently, the federalism values at issue in Perpich were considerably different than those at issue in Garcia.[211]
Nonetheless, the discussion by the Court in Perpich of the importance of federally-created state protections with respect to the National Guard indicates that there are important similarities to Garcia. Whether or not it was defensible, the Court in Perpich relied upon the ultimate effects of the national political process to justify a conclusion that a state power had not been nullified. In fact, the Perpich Court's justification that "the powers allowed to the states by existing statutes are significant" echoes the argument made in Garcia that "[t]he political process ensures that laws that unduly burden the States will not be promulgated."[212] Consequently, it is important to analyze the conception of federalism values that underlies both Perpich and Garcia.
The Garcia decision reflects the influence of the writings of Herbert Wechsler and Jesse Choper.[213] Wechsler and Choper each provided distinct arguments for limiting the role of the Supreme Court in determining issues related to federalism. Consequently, how these arguments apply to a situation like that involved in Perpich deserves discussion.
Process-Based Federalism
Herbert Wechsler stated that "the existence of the states as governmental entities and as the sources of the standing law is in itself the prime determinant of our working federalism . . . . "[214] He argued:
Federal intervention as against the states is . . . primarily a matter for congressional determination in our system as it stands. So too, [Page 675] moreover, is the question whether state enactments shall be stricken down as an infringement on the national authority. For while the Court has an important function in this area . . . the crucial point is that its judgments here are subject to reversal by Congress, which can consent to action by the states that otherwise would be invalidated.[215]
Wechsler concluded that "[t]he Court makes the decisive judgment only when¾and to the extent that¾Congress has not laid down the resolving rule."[216] It is central to Wechsler's view of federalism that the states through their representatives control the legislative process. When the Supreme Court intervenes on behalf of the states the Court is on "weakest ground" because the states' representatives "have broadly acquiesced in sanctioning the challenged Act of Congress."[217]
Wechsler's analysis may have force where the issue concerns the impact of federal regulation. Presumably, in such situations the federal government is acting pursuant to its broad article I powers, such as commerce, taxation, and spending.[218] Given this article I authority, Congress may regulate both private activity and state action, and may require the affirmative exercise of state action over private activity. Congressional regulation thereby diminishes the states' autonomy in making political decisions.[219] Federalism values ultimately are protected by congressional representation, which ensures that the policy preferences of a majority of the state's citizens are considered. As the Court in Garcia noted, "It is no novelty to observe that the composition of the Federal Government was designed in large part to protect the States from overreaching by Congress."[220]
However, it would be inappropriate to apply Wechsler's approach to federalism in the enforcement of Militia Clause requirements. Federal powers are enumerated, and the Constitution includes some specific restraints to national political power.[221] The reservation to the [Page 676] states of the right to train the militia should be one such restraint,[222] although the Perpich Court's interpretation of the Militia Clause effectively eliminated it as such. Had the Court interpreted the training exception as an unrestricted right, this fact alone might have justified a different approach to the enforcement of federalism limits. Even Wechsler admitted that his conception of the judicial function and its relation to federalism was inappropriate where individual rights were concerned, because "this is where the political processes cannot be relied upon to introduce their own correctives . . . . "[223] It would seem that where a state power is expressly identified, there also may be greater need for protection by the Courts. The political process cannot be relied upon to enforce the "right" because the guarantee itself may be anti-majoritarian.[224] Such constitutionally mandated powers may be modified only by constitutional amendment, and it is this political process that ultimately protects federalism values.[225]
There are other reasons that a process-oriented view of federalism should be inapplicable to the Militia Clause. When not in the service of the federal government, the militia are specifically under the control of the individual governors. The President acts as the Commander in Chief only when units are "called into the actual Service of the United States."[226] The governors appoint the officers of the militia,[227] and the Constitution allows military court jurisdiction only where there is federal impressment.[228] Therefore, when the federal government interferes with a governor's control of the militia, this action is not directed at state activity per se. Instead, the interference is one that conflicts [Page 677] with the internal structure of state government, because a function of the governor is limited.
When the federal government interferes with a political function of state government, there can be no "broad acquiescence" by the state to the federal action. In some ways the situation is comparable to separation of powers issues. If Congress cannot constitutionally limit the function of the President as Commander in Chief of the armed forces, arguably there should be no more reason to assume that the federal government may interfere with the functions of state governors, who are commanders in chief of the state militia. Situations implicating separation of powers concerns have routinely involved legislative enactments that were ostensibly made pursuant to independent constitutional grants,[229] and yet the hostility that such enactments created hardly suggests that there was broad acquiescence by the President. [230] Similarly, limitations to gubernatorial functions can hardly be said to involve broad acquiescence by the state leaders to the legislative enactment, especially since the governors, unlike the President, cannot veto the action.
The Perpich opinion reflects the inherent tensions that arise when a process-oriented view of federalism is applied to the Militia Clause. Although the Court argued that powers allowed to the states by existing statutes are significant and that the decision merely recognized the supremacy of federal power in military affairs, the decision actually has much broader ramifications than the Court acknowledged. The Montgomery Amendment effectively directs the governor to act affirmatively in response to a federal activation order¾that is, the amendment requires that the governor consent to the activation of the National Guard unless the units are needed for a local emergency, or unless the order is so intrusive that it deprives the state of effectively training the Guard for local service.[231] Certainly such an assertion of federal power over the actions of the governor is "significant." It leaves the governor without choice.
While there may be statutes that allow the states effectively to prepare and train separate defense forces, such statutes are irrelevant in terms of defining the scope and extent of the militia powers. The [Page 678] United States Code specifically defines the National Guard as "the organized militia . . . that is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution."[232] Contrary to the opinion of the Perpich Court, so long as the National Guard is recognized as the militia, any intrusion with the states' training power necessarily deprives the states of a "constitutional entitlement." It is immaterial that the state has other options; to the extent that the National Guard is the constitutionally organized militia, it must be trained as such.[233]
Finally, the actual facts of the Perpich case belie any concept that the political process will protect federalism limits contained within the Militia Clause. The Montgomery Amendment passed the House of Representatives after only ten minutes of floor debate. Several of its opponents requested additional time to explore the constitutional implications of the amendment's passage.[234] Others simply argued that the amendment was per se unconstitutional.[235] Proponents of the amendment uniformly ignored the constitutional issues involved, and instead focused upon issues related to the preparation of the Guard[236] [Page 679] and foreign policy.[237] Given the complexity of the issues, the "internal safeguards of the political process" hardly can be said to have "performed as intended."[238]
Wechsler's approach to federalism issues presumes that there will be an informed political process. Yet the Perpich decision presents the consummate example of how such a view may be flawed. The President had already declared the state of affairs in Nicaragua to be an emergency.[239] Supreme Court precedents suggested that a national emergency or exigency was all that was needed for the President to call out the militia.[240] Yet the President specifically declined to activate the National Guard to meet the "Nicaraguan emergency," and instead described the activation order as being for training exercises. Assuming that the President actually desired to use the Guard to effect national policy ideals relating to Nicaragua, and assuming that the governor's actions interfered with this foreign policy, fault nonetheless lies with the characterization of the orders by the President. The President's stated intentions were not his actual intentions.
The reservation to the states of the power to train the militia is one means whereby the Constitution effectively guarantees that the civilian government can supervise the military. That this supervision is accomplished by a federalism grant only underscores the fact that the military ultimately is accountable to the general populace.[241] When the President makes use of the Guard, the President's actions neces-[Page 680] sarily implicate the militia powers. However, these federal militia powers are identified, and as such check the federal government's usurpation of the citizen military. Where the President deliberately exercises authority that implicates federalism ideals, the President cannot complain that these same ideals limit his power.[242] While the actions of the governors in "vetoing" the use of the Guard for peacetime training exercises may interfere with the President's foreign policy goals, such interference only occurs where, as in Perpich, the President's stated intentions do not reflect actual intentions. Honest representative government actually is promoted by the actions of the governors, because the vetoes force the President to be politically accountable for the President's actions. The President is unable to divert scrutiny of his actual intentions and either must make the necessary declaration or allow the states to train the Guard. The governors' actions promote, rather than are protected by, an informed political process.
Federalism and Nonjusticiability
In contrast to Herbert Wechsler, Jesse Choper provided a somewhat different rationale for limiting the scope of judicial review of federalism issues. He believed that all federalism issues simply should be regarded as nonjusticiable. Choper described his rationale, which he labeled "the Federalism Proposal," as follows:
The federal judiciary should not decide constitutional questions respecting the ultimate power of the national government vis-à-vis the states; rather, the constitutional issue of whether federal action is beyond the authority of the central government and thus violates "states' rights" should be treated as nonjusticiable, final resolution being relegated to the political branches - i.e., Congress and the President.[243]
Choper thought that when an individual claims that a federalism guarantee has been violated "he implicitly concedes that one of the two levels of government - national or state - has power to engage in the questioned conduct."[244] Choper did not claim that the states' position within the structure of the federal government guaranteed that constitutional violations would not occur; rather, Choper argued that [Page 681] "should a true constitutional crisis arise, with Congress and the President joining forces in ignoring clear constitutional mandates . . . it is probably futile to rely on the Court to right the matter."[245]
Choper's approach to resolving federalism issues may be better than the one applied in Perpich. Although the effect of Choper's rationale is similar to Herbert Wechsler's in that the political branches ultimately enforce federalism limits, Choper's proposal actually anticipates that the actions of the government in limiting federalism values may violate constitutional guarantees. Choper may also be correct that, should the assertion of federal power in military affairs force a constitutional crisis, the Court will be unable to correct the issue.[246] Therefore, Perpich, rather than stretching textualism, might have better accommodated constitutional principles by declaring to be nonjusticiable the issue of the division of powers within the Militia Clause. In fact, there existed Supreme Court precedent limiting judicial review of questions regarding the training of the militia.
In Gilligan v. Morgan,[247] which arose in the aftermath of the 1970 shootings at Kent State University, the Supreme Court ruled to be nonjusticiable a complaint requesting injunctive relief and court-enforced supervision of the training of the Ohio National Guard. The Court of Appeals had ordered a trial on the claim that the "pattern of training, weaponry and orders in the Ohio National Guard . . . [made] inevitable the use of fatal force in suppressing civilian disorders."[248] The Supreme Court noted that the language in the Militia Clause indicated that the training of the militia was to be performed "according to the discipline prescribed by Congress," and commented: "[T]hat provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia . . . , with certain responsibilities being reserved to the respective States." The Court argued that Congress had enacted "appropriate legislation" pursuant to the Militia Clause, and stated that the case was nonjusticiable because "[t]he relief sought . . . , requiring initial judicial review and continu-[Page 682] ing surveillance by a federal court over the training, weaponry, and orders of the Guard, would . . . embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government."[249]
The question who should train the militia does not involve Gilligan's problem of court-enforced supervision of the armed forces. Rather, such a choice involves a judicial-style interpretation of a constitutional provision that requires no specialized knowledge of the armed forces. Yet, a choice as to whether the states or the federal government are empowered to train the National Guard does implicate the importance of military structure, which is itself a "critical area of responsibility" vested in the federal government. If there is any area where the federal government is likely to render "futile" judicial efforts to enforce federalism limits, it is in the area of national defense.[250] In fact, the present National Guard structure exists as a response to complaints and difficulties related to the former structure of the militia.[251] Therefore, it might have been proper for the Court in Perpich to have relied upon the same nonjusticiability justification announced in Gilligan to deny the governors relief, even if such a judgment allowed an independent constitutional violation to occur.
A ruling in Perpich that the Militia Clause issue was nonjusticiable certainly would not have satisfied the present Supreme Court criteria for determining political questions. Presently, the political question doctrine requires a finding by the Court of no discernable constitutional content and a lack of judicially manageable standards for determining the issue.[252] The Militia Clause did have a discernible [Page 683] constitutional content, although the Supreme Court stretched the text of the clause to define its meaning.
However, cases that have ruled issues to be nonjusticiable as political questions frequently implicate concerns that are similar to those involved in Perpich. These cases suggest that Choper's argument for limiting judicial review of federalism issues may be more satisfactory than an approach that stretches textualism, at least where military powers are concerned, because the Court will acknowledge that the issues relating to military structure are better committed to the political branches of government.
For instance, in Luther v. Borden,[253] a case which actually involved an action for damages for trespass, the Supreme Court refused to render a judgment determining which of two governments was lawful following the 1842 Dorr rebellion in Rhode Island. The Court ruled that under the Guaranty Clause[254] of the United States Constitution "it rests with Congress to decide what government is the established one in a State."[255] Noting that the Guaranty Clause provides that Congress will protect every state against invasion and domestic violence, the Court added:
By [the Militia Act of 1795], the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President . . . .
After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision is right? . . . If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guaranty of anarchy, and not of order. Yet if this right does not reside in the courts when the conflict is raging, if the judicial power is at that time bound to follow the decision of the political, it must be equally bound when the contest is over.[256]
The holding in Luther that the President has sole discretion to decide when to activate the militia in some ways implicates the question of whether the activation of the National Guard for training exercises is lawful.[257] The determination as to how the National Guard should be [Page 684] prepared for an emergency necessarily requires a delicate inquiry into Presidential military power. This inquiry itself creates difficulties for a Court that must decide whether the training should be handled by the states because the determination of the need for the training is committed to Presidential discretion.
Similarly, the Supreme Court has at various times held matters pertaining to foreign affairs to be political questions, especially where the issue concerned "recognition of belligerency abroad"[258] and the date and duration of military hostilities.[259] The Court has even cited Martin v. Mott,[260] a case involving a challenge to the constitutionality of the President's authority to call forth the militia, for the proposition that "emergency's nature demands 'A prompt and unhesitating obedience."'[261] These cases by themselves do not warrant a conclusion that the Supreme Court should have ruled to be nonjusticiable the issue of the training function in the Militia Clause. However, the Perpich factual scenario involved obvious foreign policy elements coupled with powerful national defense issues. The Montgomery Amendment was specifically crafted to eliminate any intrusion by the governors into foreign affairs. [262] Because the constitutional challenge combined these elements with federalism concerns, an argument exists that the case necessarily involved questions better suited to resolution by an independent political branch.
Choper's approach to resolving a federalism issue like that involved in Perpich is imperfect. The Court has purposely limited the extent of its political question jurisprudence, at least in part, to attenuate the undesirable consequences that accompany resolution of conflicts by political choice.[263] Choper himself recognized that his proposal was "radical" and that it required the Court "to reject the long-established system of judicial review over states' rights."[264] Under the Federalism Proposal, there are no qualifications placed upon the President such that she will need to justify her actions, because without judicial review these actions will remain beyond scrutiny. [Page 685]
Yet, unlike the federalism solution proposed by Herbert Wechsler, Choper himself accounted for the fact that "[s]ome provisions [in the Constitution] expressly stipulate state control over certain matters and, in context, imply negation of national governance."[265] Choper purposely included such powers within the reach of his Federalism Proposal, and he even identified congressional militia powers as among those under which "all questions of the reach of federal authority versus states' rights" should be held nonjusticiable.[266]
Choper's solution would have guaranteed that judicial review of the federalism values incorporated within the Militia Clause would have been determined by an objective rationale. There would have been no need for the Court to stretch the meaning of the Clause. In some ways, a nonjusticiability solution would have assured a more meaningful role for the Court, because its choices elsewhere to review military functions would suggest that there was a more pronounced need for judicial intervention.[267] If the concern in Perpich was that the Supreme Court did not wish to interfere with military structural choices, it should have stated as much. The emergence of an altogether different foreign policy structure and a national defense system that would have been incomprehensible to the Framers lends support to the idea that federalism limits are difficult to enforce in military affairs. The changes in our nation may have altered so dramatically military structure that it is at least justifiable to deem questions relating to these issues nonjusticiable. Federalism limits on the military would not be ignored¾they merely would not be not enforced by the courts.
CONCLUSION
The gubernatorial consent provision that existed prior to the passage of the Montgomery Amendment had constitutional underpinnings. The statute incorporated the Framers' intention that the states train and supervise the militia in the absence of national emergencies requiring the federal government to call forth this force. In fact, prior to Perpich even the military courts suggested that the gubernatorial [Page 686] consent requirement was mandated constitutionally.[268]
On August 2, 1990, less than two months after the decision in Perpich, Iraq invaded Kuwait. President Bush thereafter called up several units of the National Guard, and on January 17, 1991 (Iraqi time), the United States, as part of a world-wide coalition, engaged the Iraqi forces. The Perpich decision, however, provided nothing to distinguish President Bush's actions from those of President Reagan, although President Bush specifically identified the emergency for which the Guard was needed. Had the Court ruled that the gubernatorial consent provision was constitutionally mandated, there still could have been no interference by governors with the President's actions. Furthermore, the Court could have assured that no American citizens would have been put at risk prior to the necessary declaration of an exigency. If the Court felt that implications of this choice were too great to warrant interference with Presidential powers, the Court could have ruled the issue of the gubernatorial consent requirement nonjusticiable and achieved the same result as was reached in Perpich.
The Militia Clause may be somewhat anachronistic in the context of modern national defense. Yet, it was improper for the Supreme Court, without providing an intelligible rationale for its decision, to ignore a provision that the Framers considered such an integral component of the federal system. The National Guard, as the modern incarnation of the militia, is an integral feature of the states as such. The militia therefore continues to retain its importance in maintaining the security and peace of the states, and of the nation as a whole. If Congress seriously viewed control of the actual training of the National Guard to be an important element of the national defense network, the proper solution was to amend the Constitution. Short of that action, ignoring the tenet of the Constitution to accommodate present needs may provide undesirable consequences both in its application, and in any future resolutions of more difficult constitutional issues surrounding the structure of the military.
Monte M.F. Cooper
1. U.S. CONST. art. II, § 2, cl. 1. This clause reads:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
The "Militia of the Several States" now is known as the National Guard. See infra note 20.
2. See, e.g., U.S. CONST. art. I, § 8, cls. 12-14. See also U.S. CONST. art. I, § 8, cl. 1 (power of Congress to lay and collect taxes to "provide for the common Defence"); U.S. CONST. art. I, § 8, cl. 17 (power of Congress to exercise its authority over "Forts, Magazines, [and] Arsenals" within the District of Columbia); U.S. CONST. art. I, § 8, cl. 18 (power of Congress to enact all laws "necessary and proper" to execute its enumerated powers). Cf. U.S. CONST. art. I, § 10, cl. 3 (prohibition to the states of keeping "Troops" or "Ships of War" during times of peace without the consent of Congress).
3. U.S. CONST. art. I, § 8, cl. 11. The Constitution does contemplate that the states may on their own initiative engage in war, but the circumstances that lead to the exercise of this power are extremely limited, requiring actual invasion and "imminent danger." See U.S. CONST. art. I, § 10, cl. 3. Because the Guaranty Clause of the United States Constitution, U.S. CONST. art. IV, § 4, provides that "[t]he United States . . . shall protect each [state] against Invasion," it seems unlikely that there ever would be circumstances in which a state would engage in war due to actual invasion without the federal government intervening to protect the state.
4. See U.S. CONST. art. I, § 8, cls. 15-16. These provisions are collectively known as the Militia Clause.
5. U.S. CONST. amend. III. For the only discussion of the amendment by the courts, see Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982), on remand, 572 F. Supp. 44 (S.D.N.Y.), aff'd per curiam, 724 F.2d 28 (2d Cir. 1983).
6. U.S. CONST. amend. II. This amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Some theorists (and a majority of the public) believe that the amendment protects "individual rights," and that "militia" refers to all citizens. See, e.g., Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 646-51 (1989); Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms," 49 LAW & CONTEMP. PROBS. 151, 153 (1986). However, several "states' rights" scholars have argued that the amendment is merely a guarantee to the states of the authority to maintain organized militia. See Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 MICH. L. REV. 204 (1983); Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 HASTINGS CONST. L.Q. 961 (1975); see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-2 n.6 (2d ed. 1988). The "states' rights" view apparently has been accepted by the Supreme Court. See, e.g., United States v. Miller, 307 U.S. 174, 178 (1939); Lewis v. United States, 445 U.S. 55, 65 n.8 (1980).
7. U.S. CONST. amend. XIV, § 3. Although the drafters of this amendment clearly intended it to apply to individuals who had assisted the Confederate States of America during the Civil War, the language of the section is broad enough to apply to other contexts. Cf. Perry v. United States, 294 U.S. 330, 354 (1935) (although the provision in § 4 of the fourteenth amendment validating the assumption of public debts was "undoubtedly inspired by the desire to put beyond question the obligations of the Government issued during the Civil War, its language indicates a broader connotation").
The Constitution also includes several provisions that discuss the crime of treason. U.S. CONST. art. I, § 6, cl. 1; U.S. CONST. art. II, § 4; U.S. CONST. art. III, § 3, cls. 1-2.
8. U.S. CONST. art. I, § 9, cl. 2. Although the circumstances have varied as to when "rebellion" or "invasion" warrant suspension of the privilege of the writ, the last Congressional exercise of this authority occurred in Hawaii during World War II, pursuant to section 67 of the Hawaiian Organic Act, ch. 339, 31 Stat. 141, 153 (1900). See also Duncan v. Kahanamoku, 327 U.S. 304 (1946) (ruling that section 67 did not give the armed forces the power to supplant all civilian laws).
9. U.S. CONST. amend. V. The Supreme Court has ruled that the jurisdiction of a court-martial depends solely on the accused's status as a member of the Armed Forces, and not on the "service connection" of the offense charged. Solorio v. United States, 483 U.S. 435 (1987) (overruling O'Callahan v. Parker, 395 U.S. 258 (1969)). Furthermore, in the Nazi Saboteurs Case, Ex parte Quirin, 317 U.S. 1 (1942), the Court ruled that both citizens and alien enemy belligerents may be tried by a military commission, even for capital offenses, where the act constitutes an offense "against the law of war."
10. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).
The Supreme Court has ruled that the military powers granted to Congress, including the powers to declare war and to raise and support armies, are "plenary"; consequently, there may be circumstances where separate constitutional guarantees do not affect wartime congressional action. See, e.g., Miller v. United States, 78 U.S. (11 Wall.) 268, 304-05 (1870) (plurality opinion) (Confiscation Acts allowing ex parte seizure of property belonging to citizens suspected of disloyalty were a lawful exercise of Congressional war powers and were "not affected" by the fifth or sixth amendments); United States v. Caltex, Inc., 344 U.S. 149, 154 (1952) (where, during wartime, property was seized and destroyed by the military in order to prevent its use by the enemy, the fifth amendment did not require just compensation); Bowles v. Willingham, 321 U.S. 503, 519 (1944) (wartime rent control measures that were established without any prior hearing did not violate due process); Korematsu v. United States, 323 U.S. 214, 217-18 (1944) (military order relocating persons of Japanese-descent, whether or not United States citizens, to internment centers was a lawful exercise of government's war powers). Nonetheless, the Supreme Court has ruled that the Bill of Rights applies even where Congress exercises its war powers. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 589 n.19 (1935).
11. The confusion surrounding this issue is caused in part by uncertainty as to what is the source of the war power. Alexander Hamilton suggested that the power derives from Congress' enumerated powers to provide for the "common defense." See THE FEDERALIST NO. 23 (A. Hamilton). However, two early Supreme Court cases suggest alternative reasoning: that the war power is inherent as an attribute of sovereignty, and that the power to declare war necessarily implies the power to wage it. See Penhallow v. Doane, 3 U.S. (3 Dall.) 54, 80 (1795); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). Each of these theories has, at various times, received favorable treatment from members of the Supreme Court. See Lichter v. United States, 334 U.S. 742, 755 n.3, 757-58 (1948); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936); Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86-87 (1874).
12. Separation of powers concerns generally result from competing views as to when it is necessary for the President to request a declaration of war in order to continue the United States' involvement in hostilities. Recent debate in this regard has focused upon the constitutionality of the War Powers Resolution, 50 U.S.C. §§ 1541-1548 (1988), which not only includes a legislative veto, but arguably infringes upon the President's foreign affairs powers. See generally Ely, Suppose Congress Wanted a War Powers Act that Worked, 88 COLUM. L. REV. 1379 (1988); Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX. L. REV. 833 (1972). See also Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255 (1988). Two recent lower court cases discuss separation of powers in the context of the United States' deployment of troops in Saudi Arabia following Iraq's invasion of Kuwait. See Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990); Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990).
13. E.g., Lichter v. United States, 334 U.S. 742, 779 (1948):
The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. In peace or in war it is essential that the Constitution be scrupulously obeyed, and particularly that the respective branches of the Government keep within the powers assigned to each by the Constitution.
While the possibility exists that Congress might unconstitutionally delegate its legislative powers, it is unlikely that the Supreme Court would rule that Congress had done so. The Court has never sustained a delegation challenge to a governmental wartime measure. See, e.g., Hirabayashi v. United States, 320 U.S. 81, 104 (1943); Yakus v. United States, 321 U.S. 414, 424 (1944); Selective Draft Law Cases, 245 U.S. 366, 389 (1918).
14. U.S. CONST. art. I, § 8, cl. 12.
15. U.S. CONST. art. I, § 8, cl. 13.
16. U.S. CONST. art. I, § 8, cl. 14.
17. U.S. CONST. art. I, § 8, cl. 15.
18. U.S. CONST. art. I, § 8, cl. 16.
19. Id.
20. Act of June 15, 1933, ch. 87, 48 Stat. 153. See also Maryland ex rel. Levin v. United States, 381 U.S. 41, 46 (1965) ("[t]he National Guard is the modern Militia reserved to the States by Art. I, § 8, cl[s]. 15, 16 of the Constitution"), vacated on rehearing, 382 U.S. 159 (1965); Weiner, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 210 (1940) ( "the National Guard not in federal service is still militia"). Cf. Perpich v. Department of Defense, 110 S. Ct. 2418, 2426-27 (1990) ("[n] otwithstanding . . . brief periods of federal service, the members of the state Guard unit continue to satisfy [a traditional] description of a militia") (citing Dunne v. People, 94 Ill. 120, 138 (1879)).
The United States Code presently distinguishes the "organized" militia, known as the National Guard, from the "unorganized" militia, known as the "militia of the United States." See 10 U.S.C. § 311(b) (1988). The militia of the United States is defined as "all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard." 10 U.S.C. § 311(a) (1988).
The National Guard is defined as "the Army National Guard and the Air National Guard." 10 U.S.C. § 101(9) (1988). The Army National Guard and Air National Guard themselves are defined as "that part of the organized militia of the several states . . . active and inactive, that (1) is a land [or air] force; (2) is trained and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution; (3) is organized, armed, and equipped wholly or partly at Federal expense; and is federally recognized." 10 U.S.C. § 101(10), (12) (1988). The Army National Guard of the United States and the Air National Guard of the United States are separately defined as "reserve components" of the Army and Air Force that consist of "federally recognized units and organizations of the Army [or Air] National Guard" and "members of the Army [or Air] National Guard who are also Reserves of the Army [or Air Force]." 10 U.S.C. §§ 101(11), (13), 3077, 8077 (1988). The "reserve components" of the Army or Air Force include the Army and Air Force Reserves, as well as the Army National Guard of the United States and the Air National Guard of the United States, but no person may be a member of more than one of these components at any time. 10 U.S.C. § 261 (1988). Thus, the Army and Air Force Reserves include all "Reserves of the Army [or Air Force] who are not members of the Army [or Air] National Guard of the United States." 10 U.S.C. §§ 3076, 8076 (1988). See also 10 U.S.C. §§ 3261(c), 8261(c) (1988).
When the Army and Air National Guards are in the service of the United States, they are defined as components of the Army and Air Force. 10 U.S.C. §§ 3078, 8078 (1988). To be "in the service of the United States," the units must be on active duty. 10 U.S.C. §§ 101(22), (24), 3079, 8079 (1988). A member of the Army or Air National Guard of the United States must at all times be enlisted in the National Guard, must take an enlistment oath, and must be a member of a federally recognized unit or organization of the Army or Air National Guard in the grade in which he is enlisted as a Reserve. 10 U.S.C. §§ 3261(a), 8261(a) (1988).
21. 110 S. Ct. 2418 (1990).
22. Id. at 2420.
23. National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, § 522, 100 Stat. 3816, 3871 (1986) (codified at 10 U.S.C. § 672(f) (1988)).
24. Perpich, 110 S. Ct. at 2427.
25. Id. at 2427-28.
26. Id. at 2428.
27. Id. The Court added, "The subordinate authority to perform the actual training prior to active duty in the federal service does not include the right to edit the discipline that Congress may prescribe the Guard members after they are ordered into federal service." Id.
28. Id.
29. Id.
30. Id.
31. Id. at 2428 n.24.
32. Id. at 2429.
33. Id. (footnote omitted).
34. Id. at 2429-30.
35. Id. at 2430.
36. 469 U.S. 528 (1985).
37. 426 U.S. 833 (1976). National League of Cities itself had overruled the decision in Maryland v. Wertz, 392 U.S. 183 (1968).
38. U.S. CONST. art. I, § 8, cl. 3.
39. 29 U.S.C. §§ 201-219 (1988).
40. National League of Cities, 426 U.S. at 852.
41. Garcia, 469 U.S. at 554. It is interesting that the Court uses the language "any constitutional provision," rather than tenth amendment. The Court states that the question presented to the parties during reargument of the case was "'[w]hether or not the principles of the Tenth Amendment as set forth in National League of Cities v. Usery should be reconsidered?"' Id., 469 U.S. at 536 (citation omitted). However, as the dissent notes, this is the only reference in the entire majority opinion to the tenth amendment.v at 574 n.16 (Powell, J., dissenting).
42. Id. at 556.
43. Id. at 550. The Court cites the Territorial Guarantee Clause, U.S. CONST. art. IV, § 3, as one example of such a "rare exception."
44. See Perpich, 110 S. Ct. at 2428-30.
45. Exec. Order No. 12,513, 3 C.F.R. 342 (1986), reprinted in 50 U.S.C. § 1701 app. at 1107 (1988).
46. L.A. Times, Mar. 21, 1985, § 1, at 2, col. 6. Notably, the governor declined to state what these "other concerns" were.
47. After the Pentagon again sought the use of California National Guard units in Honduras, a citizens' group filed for an injunction prohibiting Governor Deukmejian from deploying the soldiers absent a declared war or national emergency. However, the enactment of the Montgomery Amendment rendered the case moot, and the suit was dismissed. Anagnos v. Deukmejian, No. C603218 (Cal. Super. Ct. 1986).
48. United Press Int'l, Jan. 27, 1986 (wire report) (NEXIS, Omni library).
49. Hearings on Federal Authority Over National Guard Training Before the Subcomm. on Manpower and Personnel, Comm. on Armed Services, U.S. Senate, 99th Cong. 2d Sess. 2-3 (1986) (statement of Assistant Secretary of Defense James H. Webb, Jr.) (unpublished transcript) [hereinafter 1986 Hearings].
50. See id.; Pierce, Control of National Guard a Federalism Issue, 19 NAT'L J. 388 (1987); Babbitt, If Guardsmen Go to Honduras, N.Y. Times, Sept. 16, 1986, at A27, col. 1; The Guard in Honduras, NEWSWEEK, Feb. 7, 1986, at 36; Massachusetts Won't Invade Honduras, 50 PROGRESSIVE 17 (June 1986).
51. 10 U.S.C. § 672(a) (1988).
52. 10 U.S.C. § 672(b) (1988).
53. Id. See also 10 U.S.C. § 672(d) (1988) which provides for the ordering to active duty of National Guard members with the members' consent, again subject to gubernatorial approval.
54. See, e.g., Pentagon May Try to Eliminate Governors' Power over Guard, L.A. Times, Apr. 26, 1986, § 1, at 4, col. 1.
55. See 1986 Hearings, supra note 49.
56. 132 CONG. REC. 21,660 (1986).
57. Id. Representative Montgomery argued that, despite the text of the amendment, "the Governor still will have the authority to block the training if he or she thinks the guardsmen are needed at home for local emergencies." 132 CONG. REC. 21,660 (1986) (statement of Rep. Montgomery). However, Representative Montgomery declined to specify what situations would constitute local emergencies. Instead, the Congressman argued that his amendment only changed statutory law, not the Constitution. Id.
58. 132 CONG. REC. 21,663 (1986).
59. The conferees included in the legislative history of the 1987 National Defense Authorization Act a notation indicating their intent to allow for an exception to the effects of the amendment. The conference report stated:
The conferees reiterate that under this provision, the governor still will have the authority to block training if he or she thinks the guardsmen are needed at home for local emergencies. The conferees intend that nothing about the words "location, purpose, type, and schedule" should constrain a governor in according appropriate priority to a state or local emergency, such as a flood or other natural disaster.
H.R. CONF. REP. NO. 1001, 99th Cong., 2d Sess. 475, reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS 6413, 6534.
60. 10 U.S.C. § 672(f) (1988).
61. Perpich v. United States Dep't of Defense, 666 F.Supp. 1319 (D. Minn. 1987).
62. Dukakis v. United States Dep't of Defense, 686 F.Supp. 30 (D.Mass. 1988).
63. Perpich, 666 F.Supp. at 1321; Dukakis, 686 F.Supp. at 31-32.
64. 686 F. Supp. 30 (D. Mass.), aff'd per curiam, 859 F.2d 1066 (1st Cir. 1988), cert. denied, 490 U.S. 1020 (1989).
65. U.S. CONST. art. I, § 8, cl. 12.
66. Dukakis, 686 F. Supp. at 37.
67. 859 F.2d 1066 (1st Cir. 1988).
68. 490 U.S. 1020 (1989).
69. 666 F. Supp. 1319 (D. Minn. 1988), aff'd, 880 F.2d 11 (8th Cir. 1989) (en banc), aff'd, 110 S. Ct. 2418 (1990).
70. Perpich v. United States Dep't of Defense, No. 87-5345 (8th Cir. Dec. 6, 1988).
71. 880 F.2d 11 (8th Cir. 1989).
72. Id. at 17-18.
73. Id. at 18 (Heaney, J., dissenting).
74. 110 S. Ct. 715 (1990).
75. 110 S. Ct. 2418 (1990).
76. See Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1323-24 (D. Minn. 1987), aff'd, 880 F.2d 11, 16 (8th Cir. 1989) (en banc), aff'd 110 S. Ct. 2418 (1990). Cf. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 37 (D. Mass.), aff'd per curiam, 859 F.2d 1066 (1st Cir. 1988), cert. denied, 490 U.S. 1020 (1989).
77. See Perpich, 110 S. Ct. at 2427.
78. 245 U.S. 366 (1918).
79. 247 U.S. 3 (1918).
80. See Perpich, 110 S. Ct. at 2427 & n.20.
81. 80 U.S. (13 Wall.) 397 (1871).
82. 110 S. Ct. at 2429.
83. 29 Op. Att'y Gen. 322 (1912).
84. Ch. 134, 39 Stat. 166 (1916).
85. In 1903 Congress had passed the Dick Act which organized the militia into the National Guard. Act of Jan. 21, 1903, ch. 196, 32 Stat. 775. In 1908 the Act was amended to allow the use of the Guard outside the United States. Act of Mar. 27, 1908, ch. 204, § 4, 35 Stat. 399, 400-01.
86. National Defense Act of 1917, ch. 134, § 111, 39 Stat. 166, 211.
87. Act of May 18, 1917, ch. 15, 40 Stat. 76.
88. See Selective Draft Law Cases, 245 U.S. at 377.
89. Id. at 382-83.
90. Id. at 383 (emphasis added).
91. Id. at 384.
92. Argument for the United States, quoted in Selective Draft Law Cases, 245 U.S. at 373 (emphasis added). The government had further argued that the Selective Draft Law did not infringe any "reserved rights of the States over the militia." Id. at 372.
93. Cox v. Wood, 247 U.S. at 6 (emphasis added).
94. See also A. BICKEL & B. SCHMIDT, JR., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE JUDICIARY AND RESPONSIBLE GOVERNMENT, 1910-21 520-22 (1984) (noting the Supreme Court's displeasure with the political leanings of Hannis Taylor, counsel for the draftee).
95. Tarble's Case, 80 U.S. (13 Wall.) 397, 408 (1871).
96. Id.
97. See id. at 406-07.
98. Id. at 406.
99. U.S. CONST. art. VI, cl. 2. See also Tarble's Case, 80 U.S. (13 Wall.) at 406-07.
100. Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). While the decision included no exact majority, the effect of the case was to reject any argument that the federal government had exclusive jurisdiction to try individuals who failed to report to militia duty. For a discussion of the case and its importance in the history of constitutional jurisprudence, see G. E. WHITE, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE MARSHALL COURT AND CULTURAL CHANGE, 1815-35 535-41 (1988). See also Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 702-05 (1982).
101. The dicta in Tarble's Case also appears to rest to some degree upon the need to meet emergency circumstances. See, e.g., 80 U.S. (5 Wall.) at 408-09.
102. See Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919) (war powers subject to fifth amendment); Lichter v. United States, 334 U.S. 742 (1948) (constitutional structure and controls of government apply during wartime); United States v. O'Brien, 391 U.S. 367 (1968) (congressional powers in military affairs must accommodate first amendment); Gillette v. United States, 401 U.S. 437 (1971) (war power must accommodate first amendment); Rotsker v. Goldberg, 453 U.S. 57 (1981) (Congress, in areas of military affairs, is not free to disregard the Constitution and remains subject to Due Process Clause of the fifth amendment).
103. But cf. Kester, State Governors and the National Guard, 11 HARV. J.L. & PUB. POL'Y 178 (1988) (arguing that there are no limits to Congressional exercise of Armies Clause powers and suggesting that the Militia Clause does not impose any restraints upon the right of the President to train the National Guard in foreign lands).
104. E.g., Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827); Gilligan v. Morgan, 413 U.S. 1 (1973).
105. U.S. CONST. art. I, § 8, cls. 15, 16.
106. See, e.g., Martin v. Mott, 25 U.S. (12 Wheat.) 19, 29 (1827) (power to call the militia into federal service is "a limited power, confined to cases of actual invasion, or of imminent danger of invasion"); Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1870) ("the power [of Congress to suppress insurrections] is not limited to victories in the field and the dispersion of the insurgent forces;" rather, "[i]t carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress"); Raymond v. Thomas, 91 U.S. 712, 716 (1875) ("the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what the exigency requires"); Selective Draft Law Cases, 245 U.S. 366, 382-83 (1918) (the power over the military conferred by the Constitution is not made obligatory but "depend[s] upon the discretion of Congress as to the arising of the exigencies"). See also Laird v. Tatum, 408 U.S. 1, 16 (1972) (Douglas, J., dissenting).
107. For an argument that the right to call forth the militia includes the right to use the militia to meet foreign policy goals, see Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. CIN. L. REV. 919 (1988).
108. See, e.g., Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820). Though the Houston decision includes three separate opinions, all of the justices agreed that the powers conferred by the Militia Clause were limited. Compare id., 18 U.S. (5 Wheat.) at 16 (Washington, J.) (Congressional power to provide for organizing and disciplining militia is "unlimited, except in the particulars of officering and training them, according to the discipline to be prescribed by Congress") with id., 18 U.S. (5 Wheat.) at 37 (Johnson, J., concurring) (although government's powers over militia are "extensive," no power is given to the government to train this force) and id., 18 U.S. (5 Wheat.) at 50 (Story, J., dissenting) (power given to Congress over the militia "is of a limited nature").
109. See United States v. Miller, 307 U.S. 174, 179 (1939), where the Supreme Court noted "[t]he sentiment of the time [of the drafting of the Constitution] strongly disfavored standing armies; the common view was that adequate defense of the country and laws could be secured through the Militia." See also The Declaration of Independence para. 12 (U.S. 1776).
110. U.S. ARTS. OF CONFED. art. VI, para. 4.
111. Id., art. IX, para. 5. Congress was given the power to determine the number of land forces and "to make requisitions from each State for its quota." Id., art. IX, para. 5. Congress also had "sole and exclusive right and power of . . . appointing all officers of the land forces, in the service of the United States, excepting regimental officers." Id., art. IX, para. 4. However, states had the exclusive authority to appoint all officers "of or under the rank of colonel" to any land force raised by the state for the common defense. Id., art. VII.
112. See, e.g., the comments of Alexander Hamilton at the Constitutional Convention:
Examine the present confederation, and it is evident they can raise no troops nor equip vessels before war is actually declared. They cannot therefore take any preparatory measure before an enemy is at your door. How unwise and inadequate their powers!
Notes of Robert Yates of the Federal Convention, reprinted in 1 1787: Drafting the U.S. Constitution 864 (W. Benton ed. 1986) [hereinafter 1787].
113. See Notes of James Madison of the Federal Convention, reprinted in id. at 928-29 (comments of delegate Elbridge Gerry that a standing army was "dangerous to liberty," "unnecessary," and "might be made use of to enslave any particular State"). See also 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (1888) (remarks of Edmund Randolph during the Virginia ratification convention that "there was not a member of the federal Convention, who did not feel indignation" concerning the idea of a federal standing army); Freeman, The Constitutionality of Peacetime Conscription, 31 VA. L. REV. 40, 160 (1944) ( "[i]n the Constitutional Convention no voice was raised to defend a large standing army; even those who spoke for greater military power merely desired a small volunteer army or a well organized militia").
114. 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION 465 (1911). See also Notes of James Madison of the Federal Convention, reprinted in 1787, supra note 112, at 919.
115. U.S. CONST. art. I, § 8, cl. 12.
116. See Notes of James Madison of the Federal Convention, reprinted in 1787, supra note 112, at 919. See also 3 J. ELLIOT, supra note 113, at 381 (remarks of Madison at the Virginia Convention that "[t]he most effectual way to render [a standing army] unnecessary, is to give the general government full power to call forth the militia"); Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181, 183-85 (1940) (noting that George Washington indicated in his papers that he favored an organized militia as the primary peace-time defense establishment).
117. Notes of William Pierce of the Federal Convention, reprinted in 1787, supra note 112, at 838.
118. Notes of James Madison of the Federal Convention, reprinted in id. at 837.
119. Id.
120. Surprisingly, there was little discussion of the meaning of the phrase "suppress Insurrections and repel Invasions." Nonetheless, some discussion suggests that the militia were to be available during national exigencies. See, e.g., 1 M. FARRAND, supra note 114 at 24-25 (comments of Governor Edmond Randolph that the confederation did not adequately provide against foreign invasion and during a war the "[m]ilitia [was] difficult to be collected and almost impossible to be kept in the field"); Notes of William Paterson of the Federal Convention, reprinted in 1787, supra note 112, at 860 (problems with early draft of the Constitution included "No Provision against foreign Powers or Invasions," "militia not sufficient," and "No Provision against internal Insurrections").
121. Notes of James Madison of the Federal Convention, reprinted in 1787, supra note 112, at 867. See also Notes of Robert Yates at the Federal Convention, reprinted in id. at 870.
122. See generally Notes of James Madison of the Federal Convention, reprinted in id. at 905 (describing the statements made by George Mason regarding the proposal for granting Congress "a power to regulate the militia").
123. The Federalists espoused strong federal control and supervision of the militia. For instance, Alexander Hamilton, one of the most prominent Federalists, proposed that "the Militia of all the States to be under the sole and exclusive direction of the United States, the officers of which to be appointed and commissioned by them. . . . " Notes of James Madison of the Federal Convention, reprinted in id. at 1041. See also Notes of Robert Yates of the Constitutional Convention, reprinted in id. at 1042. By contrast, the anti- Federalists sought near autonomous authority for the states to regulate the militia. See generally Notes of James Madison of the Federal Convention, reprinted in id. at 909 (comments of Delegate Oliver Ellsworth of Connecticut). See also id. (comments of Delegate John Dickenson of Delaware).
124. Id. at 905.
125. Id. at 908.
126. Id. at 908-09.
127. Id. at 909. Mason made the proposal after John Dickenson of Deleware suggested that the general government should be restricted to control of one-fourth of the militia at any given moment. Id. This advice had been stringently opposed by delegate Pierce Butler of South Carolina, who "urged the necessity of submitting the whole Militia to the general Authority, which had the care of the general defence." Id.
128. Id. Madison's notes indicate that Mason desired a select militia so as to limit the size of the force available to the federal government. Mason also "considered uniformity as necessary in the regulation of the Militia throughout the Union." Id. at 908-09. It may be that Mason desired a select force in part to create a "well regulated militia." It is interesting to note that George Washington also desired a select militia, "consisting only of the younger members of the community, who should be properly officered, and periodically trained under uniform supervision." Wiener, supra note 116, at 183.
129. See, e.g., Notes of James Madison of the Federal Convention, reprinted in 1787, supra note 112, at 909 (comments of Delegate Charles Cotesworth Pinckney); id. at 910 (comments of Delegate James Madison); id. (comments of Delegate Oliver Ellsworth). But cf. id. (comments of Delegate Roger Sherman); id. (comments of Delegate Elbridge Gerry).
130. Id. at 909.
131. Id. at 911.
132. Id. at 913.
133. Id. at 916.
134. Id. (emphasis in original).
135. The Governor in Perpich actually did not "challenge the authority of Congress to create a dual enlistment" system. Perpich v. Department of Defense, 110 S. Ct. at 2426.
136. Notes of James Madison of the Federal Convention, reprinted in 1787, supra note 112, at 916.
137. Id. (emphasis in original).
138. Id. at 917. Delegate Jonathan Dayton of New Jersey also proposed an alternative Militia Clause:
To establish an uniform and general system of discipline for the Militia of these States, and to make laws for organizing, arming, disciplining and governing such part of them as may be employed in the service of the U.S., reserving to the States respectively the appointment of the officers, and all authority over the Militia not herein given to the General Government.
Id. at 916-17 (emphasis in original). However, the Convention refused a motion to suspend debate on the proposal from committee in order to consider Dayton's motion.
139. Id. at 917.
140. Id. at 918 (emphasis in original).
141. Id. at 917.
142. Id.
143. Id.
144. See id. at 918-19. The principal question was whether the states should enjoy the right to appoint all officers of the militia, or whether they should only be entitled to appoint officers under the rank of general officers. The latter position was espoused by Madison, but he was defeated.
145. G.E. WHITE, supra note 100, at 537.
146. Perpich v. United States Dep't of Defense, 880 F.2d at 21 n.12 (Heaney, J., dissenting) (emphasis in original). See also Letter from Luther Martin, Delegate to the Federal Convention and Attorney General of Maryland, to Thomas Cockey Deye, Speaker of the House of Delegates of Maryland (Jan. 27, 1788), reprinted in 1 J. ELLIOT, supra note 113, at 371 (emphasis added):
For by this extraordinary [Militia Clause], by which the militia is taken entirely out of the power of their respective states, and placed under the power of Congress, it was speciously assigned, as a reason, that the general government would cause the militia to be better regulated and better disciplined than the state governments, and that it would be proper for the whole militia of the Union to have a uniformity in their arms and exercise. To this it was answered, that the reason, however specious, was not just¾that it would be absurd that the militia of the western settlements, should either be confined to the same arms or exercise as the militia of the Eastern or Middle States¾that the same penalties which would be sufficient to enforce an obedience to militia laws in some states, would be totally disregarded in others . . . .
147. Freeman, supra note 113, at 65.
148. Compare 3 J. ELLIOT, supra note 113, at 402 (comments of George Mason) with id. at 383 (comments of James Madison). See also id. at 421 (comments of John Marshall).
149. Id. at 386. See also id. at 422-24 (comments of Patrick Henry).
150. Id. at 391 (emphasis added).
151. Id. at 392.
152. Id. at 90 (emphasis added).
153. Id. (emphasis added).
154. Id. at 383 (emphasis added).
155. Id. at 416.
156. Id.
157. Id. at 424 (emphasis added).
158. Id. at 407-08. Madison noted that a separate provision was required for the militia to execute the laws of the Union because "[t]here are cases in which the execution of the laws may require the operation of the militia, which cannot be said to be an invasion or insurrection." Id. at 408. Madison believed that "[t]here may be a resistance to the laws which cannot be termed an insurrection." Id.
159. Id. at 419.
160. Id. at 418. John Marshall responded to Grayson as follows:
[Grayson] fears, that in one part of the Union [the militia] will be regulated and disciplined, and in another neglected. This danger is enhanced by leaving this power to each state; for some states may attend to their militia, and others may neglect them. If Congress neglect our militia we can arm them ourselves.
Id. at 421.
161. But see id. at 417-18 (comments of Charles Grayson that "no instance could be adduced where the states could employ the militia; for, in all the cases wherein they could be employed, Congress had the exclusive direction and control of them") (emphasis added).
162. Compare id. at 402 (comments of George Mason that "the clause which gives Congress power to provide for arming, organizing, and disciplining the militia, and governing those in actual service of the Union . . . included the power of annexing punishments, and establishing necessary discipline") with id. at 407 (comments of H. Lee that organization "does not include the infliction of punishments" and that "[t]he militia will be subject to the common regulations of war when in actual service; but not in time of peace") (emphasis added).
163. 4 id. at 63-64 (emphasis added).
164. 2 id. at 384 (emphasis in original).
165. See, e.g., id. at 406 (proposal by Melacanton Smith of New York including "that the power to organize, arm, and discipline the militia, shall not be construed to extend further than to prescribe the mode of arming and disciplining the same"); id. at 545-46 (proposed amendment issued during the Pennsylvania Convention "[t]hat the militia shall not be subject to martial law, but when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject to such fines, penalties, and punishments, only, as shall be directed or inflicted by the laws of its own state"); id. at 552 (Maryland proposed amendment "[t]hat the militia shall not be subject to martial law, except in time of war, invasion, or rebellion"); 4 id. at 245 (North Carolina proposed amendment "[t] hat each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same; that the militia shall not be subject to martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state"). See also Brutus II, N.Y.J. & Weekly Reg., Nov. 1, 1987, reprinted in FEDERALISTS AND ANTIFEDERALISTS 159, 162 (1989).
166. THE FEDERALIST NO. 28, at 178 (A. Hamilton) (C. Rossiter ed. 1961).
167. THE FEDERALIST NO. 29, at 182 (A. Hamilton) (C. Rossiter ed. 1961).
168. Id.
169. Id.
170. See also THE FEDERALIST NO. 23, at 153 (A. Hamilton) (C. Rossiter ed. 1961) (emphasis in original), in which Hamilton wrote:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
171. THE FEDERALIST NO. 29, at 183 (A. Hamilton) (C. Rossiter ed. 1961) (emphasis added).
172. THE FEDERALIST NO. 24, at 161 (A. Hamilton) (C. Rossiter ed. 1961) (emphasis in original).
173. THE FEDERALIST NO. 25 (A. Hamilton).
174. THE FEDERALIST NO. 26, at 173-74 (A. Hamilton) (C. Rossiter ed. 1961) (emphasis added).
175. THE FEDERALIST NO. 28, at 181 (A. Hamilton) (C. Rossiter ed. 1961).
176. Id. at 182.
177. THE FEDERALIST NO. 29, at 186 (A. Hamilton) (C. Rossiter ed. 1961) (emphasis omitted).
178. Id.
179. See supra note 169 and accompanying text.
180. Perpich, 110 S. Ct. at 2427.
181. Id.
182. THE FEDERALIST NO. 46, at 299 (J. Madison) (C. Rossiter ed. 1961).
183. Id.
184. THE FEDERALIST NO. 41, at 256 (J. Madison) (C. Rossiter ed. 1961).
185. Id.
186. THE FEDERALIST NO. 56, at 348 (J. Madison) (C. Rossitered. 1961). See also THE FEDERALIST NO. 53, at 333 (J. Madison) (C. Rossiter ed. 1961) ("How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the States are distinguished from each other?").
187. 1 W. BLACKSTONE, COMMENTARIES *412 (emphasis added). See also A. SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 468-69 (C.J. Bullock ed. 1909) (contrasting the militia with a standing army).
188. Amici curiae for both the National Guard Association of the United States and the Washington Legal Foundation argued that the language "according to the discipline prescribed by Congress" accorded the federal government a constitutional right to train the National Guard. See Brief of Amici Curiae Washington Legal Foundation at 7, Perpich v. Department of Defense, 110 S. Ct. 2418 (1990) (No. 89-542); Brief of Amici Curiae National Guard Association of the United States at 9-12, Perpich v. Department of Defense, 110 S. Ct. 2418 (1990) (No. 89-542). However, the lower court in Perpich rejected the contention that the "discipline" exception allowed the federal government to train the militia. See Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1325 n.9 (D. Minn. 1987), aff'd, 880 F.2d 11 (8th Cir. 1989), aff'd 110 S. Ct. 2418 (1990). Nonetheless, in dicta the Supreme Court indicated that it agreed with the amici:
[A]lthough the appointment of officers "and the Authority of training the Militia" is reserved to the States respectively, that limitation is, in turn, limited by the words "according to the discipline prescribed by the Congress." If the discipline required for effective service in the Armed Forces of a global power requires training in distant lands, or distant skies, Congress has the authority to provide it.
110 S. Ct. at 2428.
189. See, e.g., BLACK'S LAW DICTIONARY 417 (5th ed. 1979):
Discipline. Instruction, comprehending the communication of knowledge and training to observe and act in accordance with rules and orders.
Correction, chastisement, punishment, penalty. Rules and regulations.
190. See supra notes 134, 137 and accompanying text.
191. Act of May 2, 1792, ch. 28, 1 Stat. 264.
192. Id. § 1, 1 Stat. 264.
193. Id. § 2, 1 Stat. 264.
194. The debates surrounding the first Militia Act indicate that several Representatives in the early Congress believed that the Militia Clause granted the states powers beyond those expressly reserved by the provision. See generally 3 ANNALS OF CONG. 574-77, 579-80 (1792).
195. Uniform Militia Act of 1792, ch. 33, 1 Stat. 271.
196. Id. § 1, 1 Stat. 271.
197. Id. § 6, 1 Stat. 273 (emphasis added).
198. Id. § 7, 1 Stat. 273 (emphasis added).
199. Perpich, 110 S. Ct. at 2428.
200. U.S. CONST. art. I, § 8, cl. 15.
201. See Perpich, 110 S. Ct. at 2428.
202. Id.
203. Id.
204. Id.
205. 32 U.S.C. § 109(c) (1988). The provision reads:
In addition to its National Guard, if any, a State . . . may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive . . . considers necessary, but it may not be called, ordered, or drafted into the armed forces.
206. Perpich, 110 S. Ct. at 2429.
207. Id.
208. 469 U.S. 528 (1985).
209. South Carolina v. Baker, 485 U.S. 505, 512 (1988). But see id. at 528 (Scalia, J., concurring) (declining to accept the majority's proposition that the "national political process" is the "States only protection").
210. Garcia, 469 U.S. at 550.
211. But cf. Kester, supra note 103, at 201:
The power of Congress to raise armies, buttressed by the President's to command them, is at least as potent as its commerce power. Any limitations on the former legislative power to be inferred from some portions of the Militia Clause . . . are surely no more of an obstacle than the more direct language of the Tenth Amendment that was rejected in Garcia.
212. Garcia, 469 U.S. at 556.
213. See Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980). See also Garcia, 469 U.S. at 550-51 & n.11.
214. Wechsler, supra note 213, at 546.
215. Id. at 559-60.
216. Id. at 560.
217. Id. at 559.
218. E.g., United States v. Darby, 312 U.S. 100 (1941) (regulation of interstate commerce); Steward Machine Co. v. Davis, 301 U.S. 548 (1937) (federal spending power); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (federal taxation). See also Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948) (war power regulation); Missouri v. Holland, 252 U.S. 416 (1920) (federal treaty power).
219. La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States as Agents of the Nation, 60 WASH. U.L.Q. 779, 788 (1982).
220. Garcia, 469 U.S. at 550-51.
221. The Constitution prohibits Congress from altering state boundaries when it admits new states into the Union, unless the legislatures of the affected states consent to the change. U.S. CONST. art. IV, § 3, cl. 1. The Constitution also obligates the federal government to guarantee every state in the Union a republican form of government and to protect the states from invasion or domestic violence. U.S. CONST. art. IV, § 4. Until 1808, the Constitution prohibited any national action restricting the importation of slaves. U.S. CONST. art. I, § 9, cl. 1. Additionally, Congress may not grant preferable treatment to the ports of individual states. U.S. CONST. art. I, § 9, cl. 6. Other limitations upon federal action include: a prohibition against an individual being elected to Congress unless he (or she) is a resident of the state from which the individual was elected (U.S. CONST. art. I, § 2, cl. 2); explicit recognition that the states may determine the qualifications of voters (U.S. CONST. art. I, § 2, cl. 1; amend. XVII); a prohibition against denying states "equal suffrage" in the senate without the states' consent during the amendment process (U.S. CONST. art. V); and a guarantee that states may individually regulate the sale of liquor within their own boundaries (U.S. CONST. amend. XXI).
222. See La Pierre, supra note 219, at 793 n.42. La Pierre actually cites the Militia Clause's reservation to the states of the authority to appoint the officers of the militia as an explicit federal guarantee. The author does not mention the training exception.
223. Wechsler, supra note 213, at 560 n.59.
224. The consummate example of such a right would be, of course, the Migration Clause that allowed unrestricted slavery until 1808. U.S. CONST. art. I, § 9, cl. 1. See also U.S. CONST. art. IV, § 2, cl. 3; art. V. Voting requirements and alcohol regulations also may vary among the states. Cf. North Dakota v. United States, 110 S. Ct. 1986 (1990).
225. For a discussion of the preference in modern constitutional decisions to enforce rights over structure, see R. NAGEL, CONSTITUTIONAL CULTURES 62-65 (1989).
226. U.S. CONST. art. II, § 2.
227. U.S. CONST. art. I, § 8, cl. 16.
228. U.S. CONST. amend. V.
229. The War Powers Resolution, which frequently has been the source of debate regarding separation of powers concerns, is purportedly an exercise of the congressional power to declare war. See supra notes 11-12.
230. In fact, the War Powers Resolution was vetoed by President Nixon. Neither President Ford nor President Carter consulted with Congress, as required by the Act, prior to separate military actions aimed at rescuing United States citizens in May, 1975 and April, 1980. President Reagan also ignored the notification procedures when he ordered troops to Grenada in October, 1983.
231. See supra notes 30-31 and accompanying text.
232. 10 U.S.C. § 101(10)(B), (12)(B) (1988); 32 U.S.C. § 101(4)(B), (6)(B) (1988) (emphasis added).
233. In a footnote the Court argued that the state defense forces guaranteed by 32 U.S.C. § 109(c) (1988) were in fact militia, despite the fact that these forces could not be drafted into the armed forces. See Perpich, 110 S. Ct. at 2429 n.25. The Court argued:
First, the immunity of those forces from impressment into the national service appears¾if indeed they have any such immunity¾to be the consequence of a purely statutory choice, and it is not obvious why that choice should alter the constitutional status of the forces allowed the States. Second, although we do not believe it necessary to resolve the issue, the Governor's construction of the relevant statute is subject to question. It is true that the state defense forces "may not be called, ordered, or drafted into the armed forces." 32 U.S.C. § 109(c). It is nonetheless possible that they are subject to call under 10 U.S.C. §§ 331-333, which distinguish the "militia" from the "armed forces," and which appear to subject all portions of the "militia"¾organized or not¾to call if needed for the purposes specified in the Militia Clauses.
Id. However, 32 U.S.C. § 109(a) (1988) prohibits states from maintaining "troops other than those of its National Guard and defense forces authorized by [§ 109(c)]." The statutory language suggests that the defense forces are not the militia. Rather, these forces are state "troops" to which Congress has consented pursuant to article I, section 10 of the Constitution. Such troops are, necessarily, distinct from the militia, because the Militia Clause, the Commander in Chief Clause, and the second amendment all recognize the existence of separate state militia. Compare Note, Should I Stay or Should I Go: The National Guard Dances to the Tune Called by Two Masters, 39 CASE W. RES. L. REV. 165, 174-77 (1988-89) (suggesting that the second amendment amends article I, section 10, and that "troops" within the meaning of section 10 include state militia).
234. See, e.g. 132 CONG. REC. 21,661 (1986) (statement of Rep. Edwards); id. at 21,662 (statement of Rep. Dyson); at 21,663 (statement of Rep. Schroeder).
235. See 132 CONG. REC. at 21,661 (statement of Rep. McKernan); id. at 21,662 (statement of Rep. Bonior); id. (statement of Rep. Jeffords); id. (statement of Rep. Lowry).
236. See 132 CONG. REC. at 21,660 (statement of Rep. Montgomery); id. at 21,661 (statement of Rep. Hillis); id. at 21,662 (statement of Rep. Hutto).
237. See 132 CONG. REC. at 21,661 (statement of Rep. Stratton); id. at 21,662 (statement of Rep. Hunter).
238. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. at 556. See also Griffith, Frug, Gelfand, & Howard, Judicial Review of Federalism Issues in the Third Century of the Constitution - A Dialogue, in FEDERALISM: THE SHIFTING BALANCE 77, 78 (J. Griffith ed. 1989) (comments of Professor A.E. Dick Howard). Professor Howard, in arguing that Garcia is one of the "worst" Supreme Court decisions, states:
What, then, of the political safeguards? Anyone who thinks that Congress, in enacting legislation, soberly and thoughtfully mulls the constitutional dimensions of bills being considered surely must be living in a dream world.
Cf. id. at 79 (comments of Professor Gerald E. Frug); id. at 79-80 (comments of Professor M. David Gelfand).
239. See supra note 45.
240. See Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827); Selective Draft Law Cases, 245 U.S. 366 (1918); Cox v. Wood, 247 U.S. 3 (1918).
241. See Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis in original), in which the Supreme Court commented:
The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgements, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system . . . .
242. For a related view, compare Note, The Militia Clauses, the National Guard, and Federalism: A Constitutional Tug of War, 57 GEO. WASH. L. REV. 328, 360 (1988), which suggests that the states should not be compelled to commit their own resources where the government cannot justify its own involvement in a foreign affairs matter. See also Note, supra note 233, at 210- 15 (suggesting a balancing test be used to determine the constitutionality of the Montgomery Amendment).
243. J. CHOPER, supra note 213, at 175.
244. Id.
245. Id. at 222.
246. The weakness of the Court in enforcing limits on federal military powers has been demonstrated frequently. Famous examples include the Court's decision to allow military court jurisdiction (and hence summary execution) of civilians in Ex parte Quirin (The Nazi Saboteurs Case), 317 U.S. 1 (1942), and the decision by the Court upholding the repeal of the Habeas Corpus Act of 1867 in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868), which effectively ended a challenge to the constitutionality of the Reconstruction Acts. See also The Prize Cases, 67 U.S. (2 Black) 635 (1862); Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1863); Korematsu v. United States, 323 U.S. 214 (1944); Wilson v. Girard, 354 U.S. 524 (1957).
247. 413 U.S. 1 (1973).
248. Morgan v. Rhodes, 456 F.2d 608, 612 (6th Cir. 1972), rev'd sub nom. Gilligan v. Morgan, 413 U.S. 1 (1973).
249. Gilligan, 413 U.S. at 6-7.
250. In Ex parte Quirin (The Nazi Saboteurs Case), 317 U.S. 1 (1942), the Court rendered its opinion after the Assistant Attorney General informed the Court at oral argument that President Roosevelt was prepared to defy an order holding the military commission illegal. Wash. Post, July 31, 1942, at 1; id., Aug. 1, 1942, at 4.
251. See Weiner, supra note 116, at 193-203.
252. The present political question jurisprudence derives from the decision in Baker v. Carr, 369 U.S. 186 (1962). There, the Supreme Court identified the features that constitute a nonjusticiable political question:
It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments in question.
369 U.S. at 217.
253. 48 U.S. (7 How.) 1 (1849).
254. U.S. CONST. art. IV, § 4.
255. Luther v. Borden, 48 U.S. (7 How.) at 42.
256. Id. at 43.
257. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 38 (D. Mass.), aff'd per curiam, 859 F.2d 1066 (1st Cir. 1988), cert. denied, 490 U.S. 1020 (1989), where Judge Keeton, discussing the Militia Clause issue, commented:
In general, disputes are to be resolved through political processes (rather than in courts) where in essence they are disputes as to whether particular calls of units of the militia to temporary active duty, and the locations to which units are sent during such a period, do or do not serve national interests. Absent proof that a body to whom the responsibility and power for deciding such disputes has exceeded constitutional bounds in some way, courts cannot properly intrude.
258. Baker v. Carr, 369 U.S. 186, 212 (1962). See also The Three Friends, 166 U.S. 1, 63 (1897).
259. E.g., The Protector, 79 U.S. (12 Wall.) 700 (1871); Commercial Trust Co. v. Miller, 262 U.S. 51 (1923).
260. 25 U.S. (12 Wheat.) 19 (1827).
261. Baker, 369 U.S. at 213.
262. See supra notes 236-37 and accompanying text.
263. See Nagel, Political Law, Legalistic Politics: A Recent History of the Political Question Doctrine, 56 U. CHI. L. REV. 643 (1989).
264. J. CHOPER, supra note 213, at 258.
265. Id. at 173.
266. Id. at 172, 173-74, 193.
267. Cf. Laird v. Tatum, 408 U.S. 1, 15-16 (1972), where the Court stated:
[W]hen presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation's history or in this Court's decided cases . . . that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.
268. United States v. Peel, 4 M.J. 28 (C.M.A. 1977). The court in Peel, without explanation, stated:
[The defendant] was originally ordered to active duty for training by the Adjutant General of the State National Guard with the consent of the Governor of Missouri. The process has Constitutional underpinnings in Article I, § 8, of the Constitution of the United States. Such constitutional foundation is reflected in the congressional fiat of 10 U.S.C. § 672(d).
Id., 4 M.J. at 29 (citations omitted).